Public Bill Committee

[Ann Winterton in the Chair]

Ann Winterton: Before we begin, will hon. Members please ensure, as I have, that their mobile phones are either switched off or on silent mode?

Clause 31

Section 30: supplemental

Question proposed [this day],That the clause stand part of the Bill.

Question again proposed.

Ann Winterton: With this it will be convenient to discuss the following: New clause 4—Advance decisions and advance statements —
‘(1) The 1983 Act is amended as follows.
(2) After section 76 (visiting and examination of patients) insert—
“76A Advance decisions and advance statements
(1) In this Act—
(a) reference to an advance decision is to an advance decision (within the meaning of the Mental Capacity Act 2005(c.9)) made by the patient, and
(b) “valid and applicable” in relation to such a decision means valid and applicable to the treatment in question in accordance with section 25 of that Act.
(2) If an advance decision is found to be valid and applicable to the treatment regulated by Part 4 of the 1983 Act, the person providing the treatment shall have regard to the advance decision.
(3) Where a decision is made which is inconsistent with a valid and applicable advance decision by the person providing treatment, that person must comply with the requirements set out in subsection (4) below.
(4) Those requirements are—
(a) the circumstances in which treatment was provided and the reason for it should be recorded in writing; and
(b) a copy of that record should be supplied to
(i) the patient
(ii) the patient’s nearest relative and another copy placed in the patients medical notes.
(5) A person performing a function under this Act shall consider, so far as reasonably ascertainable the patient’s past and present wishes and feelings (and in particular any relevant written statement made by him when he had capacity.”.
(3) In section 63 (treatment not requiring consent), at the end, insert—
 “(2) When deciding what treatment to give, the approved clinician in charge of the treatment shall consider so far as reasonably ascertainable the patient’s past and present wishes and feelings (and in particular any relevant written statement made by him when he had capacity), and shall record any treatments requested by the patient in the patient’s medical record, and if that treatment is not given shall record the reasons for this.”.’.
New clause 16—Treatment requiring consent (administration of medicine)—
‘(1) Section 58 of the 1983 Act is amended as follows.
(2) In subsection (1)(b) leave out “three months” and insert “two months”.’.
New clause 25—Advance statements—
‘(1) The 1983 Act is amended as follows.
(2) After section 142 insert—
“142A Advance statements
(1) In this section ‘advance statement’ means a written statement made by a patient (‘P’)—
(a) when P has reached the age of 18 and has the capacity to make such a statement, and
(b) deposited with the person (‘N’) who is primarily responsible for P’s care.
(2) An advance statement may contain—
(a) information about P, and
(b) directions as to the persons to whom that information (or specified pieces of information) is to be communicated if P becomes mentally disordered.
(3) N must—
(a) have regard to the advance statement;
(b) ensure that any other person who is concerned with the care of P is aware of the advance statement.
(4) P may—
(a) withdraw an advance statement, or
(b) replace it with an amended advance statement,
at any time when P has the capacity to do so.”.’.

Sandra Gidley: Before lunch I was outlining the ways in which advance directives could be used. In the case of conditions such as Alzheimer’s disease or other degenerative illnesses, a decision is often made not to have treatment. However, in the mental health arena there is a good case to be made that people who are feeling well should be able to state a preference for the treatment that they feel has most benefited them in the past. That decision can and I suggest should be made in consultation with the clinician, and it is helpful to the clinicians themselves in providing something for them to fall back on.
 Patients who currently fall within the scope of mental health legislation are not afforded the same rights as those who are dealt with under the Mental Capacity Act 2005, which seems somewhat discriminatory. The nature of a mental condition means that there is frequently a lack of trust between patients and clinicians, so anything we can do to help build bonds and bridges is to be welcomed. That would also allow patients to feel much more in control of their lives and their health.
 The system that we are advocating already works in some European countries. Even in the UK, a research-based review found that people with severe and enduring mental health problems who were subject to compulsory treatment were able to draw up realistic and logical advance directives, and did not use them as a means of refusing all possible future treatment, as some mental health professionals had feared. It is important to bear that in mind. Interestingly, the study also said that there is no evidence that improved outcomes result from advance decision making, although the issue is not one of outcomes; it is about the ability of the patient to feel confident and secure in any future treatment.
 Similar legislation exists in some European countries. The Scottish legislation, which we have discussed extensively in this Committee, specifies that patients can refuse treatment or specify a treatment that they have found helpful in the past. In another place, Lord Carlile expressed disappointment that so many recommendations of the joint scrutiny Committee had been dismissed by the Government. He noted that that Committee had recommended that the Government introduce legislation that would enable people to make advance statements and to record advance decisions—particularly if there was a treatment that they would not wish to receive. So there is a strong drive for the Bill to include something along those lines.
New clause 4 has three aims. First, it defines the nature and function of advance decisions and advance statements. Secondly, it outlines the procedure to be followed if decisions are taken that are inconsistent with an individual’s wishes as expressed in an advance directive. Thirdly, it defines how a person’s wishes and feelings about their care treatment should be taken into account. Considering the Government’s correct and laudable desire for patients to be more involved in their health care, I am struggling to see what the problem is.
 Advance directives are documents usually drawn up by individuals when they are well. They are generally binding under common law, but they can be overridden if the person is subject to compulsory treatment under the Mental Health Act 1983. That seems a strange anomaly. Advance statements give people the opportunity to state positively their wishes on care and treatment in case they lose the ability to make decisions for themselves at some time in the future. As I have pointed out, that is helpful to the clinicians themselves and provides opportunities for patients and physicians to discuss treatment in more detail.
It has been said that such provisions could be included in the code of practice, but they are on such a fundamental underlying principle that they should be in the Bill. Codes of practice are subject to change and the weight given to them is not always as great as it should be. It would be helpful if the Minister could consider the matter in more detail.
I have mentioned new clause 16, which we generally support, and to save time—we are under a little pressure now—I will not go into detail on it.

Angela Browning: I support what the hon. Lady has outlined. Those of us who served on the scrutiny Committee and the Standing Committee on the Mental Capacity Act 2005 had a lot of discussion about how the measures would interact with patients with mental disorders and mental health problems. On capacity, it was particularly noted that in the relevant group of patients there is often a pattern of capacity breaking down. With some mental disorders there is a cyclical nature to that, which means that advance statements would have great relevance to the patient and give them confidence in a down period, for example, that they had made their views known while they had full capacity, and that those views would be taken into account.
Another mental health issue that is perhaps not quite so applicable to physical health matters is that sometimes people lose capacity in some areas of their lives, but it might be judged that they remain able to make considered decisions in other parts of their lives. There are a lot of grey areas, and considering the way in which people’s capacity can deteriorate if they are mentally ill, I think that advance decisions would benefit people with mental disorders, particularly lifelong disorders, as many are.
 I hope that I will not be out of order in discussing new clause 25. The hon. Member for Bridgend, who tabled it, might want to respond to my point. The person with whom the patient, referred to in the new clause as “P”, deposits their advance statement might change. There might be circumstances in which no obvious person is identifiable as
“primarily responsible for P’s care.”
Sometimes that is quite difficult.
I have just written to the Minister, not apropos mental health, but about a constituency case involving somebody with a learning disability who, because of his communication disorder, has had great difficulty in getting the correct treatment as a hospital in-patient for his physical problems. I seek some guidance from the Minister; no doubt it will come through, and I shall get a letter back. There are practical complications when one tries to put some things into practice. I hope that we would not be too rigid about saying “It must be this particular person”, because in some cases that person will not be evident.

Madeleine Moon: New clause 25, which stands in my name, was deliberately drawn up so as to be as open as possible and to allow N to be defined by the patient themselves. N is defined as the person primarily responsible for P’s care, and the new clause allows flexibility for that person to be changed if there is a wish for that to happen.

Angela Browning: I understand the need to make changes. Sometimes the person will be presenting the piece of paper—we must assume that some form of written communication is involved—and referring the matter to the clinician at a time when important decisions are needed. The hon. Lady has obviously thought things through, but I want to think about other scenarios. In a perfect world, everybody would have another person to represent them, but I deal with an awful lot of cases involving elderly people who have lost capacity and for whom there is absolutely nobody. I want at least some flexibility, because if there is nobody there, N might have to be somebody who had not previously regarded themselves as a spokesman for the patient.
 I will give an example to the Committee and the hon. Lady of why I am thinking along such lines. An elderly person who had lost capacity through dementia was moved from one hospital to another. She had not made an advance statement. The only person left in her life who could advocate on her behalf about an inappropriate placement turned out to be her next-door neighbour, who was the last person left in the world who knew her wishes, preferences and needs. We are talking about a specific piece of paper, but sometimes the person who takes responsibility for presenting it or for making somebody’s views known is not whom one might have thought it would be. I want some flexibility, so that somebody who does know the person being treated is listened to.

Madeleine Moon: We are looking to give that flexibility. Under new clause 25, the person taking responsibility for the piece of paper can be whomever P chooses. The patient can, if they so wish, lodge it with a professional, such as their community psychiatric nurse, next-door neighbour or even a professional carer. The important thing is that the matter is lodged and that the information is available, and also that the specified person takes on responsibility for taking things forward once the patient is in hospital. That will ensure that the information is available and is shared.

Angela Browning: I am grateful to the hon. Lady. As time goes by, if such an arrangement becomes common practice, as I hope it will, there might be other ways of ensuring at a given point in time that clinicians are well aware of somebody’s requests. People already carry all sorts of things around with them; for example, they may do so to indicate that they have an allergy. I carry around with me a statement that I am allergic to penicillin, in case I am an emergency admission and that is not known. There are other ways of dealing with such concerns. I would hope that, in time, the patients in question could carry such information. That will probably be the answer to providing timely information, particularly when emergency decisions are being made.
I hope that those who served on the Committee dealing with the Mental Capacity Bill will agree that, when we introduced the legislation, the intention was that the further measures would help and assist in such matters. In particular, as in this part of the Bill, that includes advance statements and decisions for those with a mental disorder or those who come into the mental health services.

Brian Iddon: My hon. Friend the Member for Stafford laid a large elephant trap for me the other day on the matter of advance statements. I fell right into it, and you correctly chastised me, Mrs. Winterton. I will make today some of the statements that I was going to make then.
As I said the other day, I have a natural objection to advance statements, because I think that they have some dangers. I explained those during the detailed debate on Second Reading of the Mental Capacity Bill. My first question to my right hon. Friend the Minister is this. Against my wishes, we included advance statements in that legislation. Does she feel that we need to go over the same ground again and include a similar, if not identical, clause in this Bill? As I see it—I might be wrong—everything that hon. Members and hon. Friends are trying to do today has already been done. Will she comment on that?
I have always believed, and I think that the people who push advance decisions or directives also believe—I still call the organisation that has promoted them more than any other the Voluntary Euthanasia Society, although today it is called Dignity in Dying—that if someone makes an advance statement fairly early in life, they ought to renew it, just as we renew our wills, according to current circumstances. Unfortunately, people forget that they have made wills and advance statements, which stay in a drawer getting dusty until somebody has cause to bring them to the surface. They may be well out of date by that point, for various reasons. People change their minds as they get older and as their circumstances change. They might become richer or poorer, or they might learn to live with ailments that they never thought they could live with when they were younger. I believe that if people make advance statements, they really ought to look at them from time to time.
 That brings us into serious difficulty. Some people, tragically, suffer from mental illness, some of them intermittently but some for considerable periods throughout their lifetime. If they make an advance directive, they must have mental capacity when they make it, or it is redundant in law and in the medical service. Nobody, I hope, will enact an advance statement that can be proved to have been made when the person was under duress or peer pressure from somebody who insisted on their making it, particularly if they were mentally ill or without mental capacity when they made it. In the area of mental health, that creates severe difficulties with advance statements.
Let me turn to one of the things that worries me most. I think that we are going to see some big breakthroughs in mental health in the next few years. The brain is one of the unknown frontiers. Many people are researching the mechanisms of the brain—how it works, and particularly how drugs interact with it. I remember when chlorpromazine and the first generation of drugs of that kind allowed us to bring people out of the great institutions where straitjackets and padded cells were used. Those drugs were revolutionary in their time and helped us to bring people back into the community.
We are now into the second and perhaps even the third generation of medicines for people who are mentally ill. The progress in mental health treatment will, hopefully, accelerate. I hope that it will, and I believe that it will, because of stem cells. Alzheimer’s disease has been mentioned, and there is also Parkinson’s disease and other degenerative diseases of the neurological system. There is great hope for many that advances in stem cell research will bring us treatments for Alzheimer’s.
 If someone said that they did not want this or that treatment and they then became mentally incapacitated, they would not be able to change that advance directive even if a great advance in medical health came along. As far as I can see, that person would be stuck with the advance directive that they made when they were not ill or when they were much younger. That worries me. People who are thinking of making advance directives, particularly in the area of clinical practice, should be very careful and take advice. Most of us are ignorant about mental health treatments because we have never been involved with the mental health services and we just do not know what they can do for us and what advances have been made.
 Finally, the hon. Member for Tiverton and Honiton referred to the problem of communication. When we discussed the Mental Incapacity Bill, we went to great lengths to seek assurances from Ministers that if someone became incapacitated—through a stroke for example—and was not able to communicate as well as we can in this Room, mechanisms and instruments would be made available, so that they could communicate without speech, or even in paralysis, to the clinicians around them. The hon. Lady made a very good point.
I have always been against advance statements because of the dangers that exist. I do not say that people should not have the freedom to make those statements, but when they make them they should take into consideration all those points.

Madeleine Moon: There is quite an onus on the Committee to recognise—and I think that it has been recognised throughout the debates—that there have been huge changes in availability of mental health services and medication, to which my hon. Friend the Member for Bolton, South-East referred. We have also been very careful to ensure that we do not increase fear among mental health service users. There have been many changes since 1984. However, one of the things that has not changed is anxiety around what happens at the time of compulsion. It is a time of extreme stress and fear. One of the things that new clause 25 attempts to do is to allow someone with a history of mental health problems to feel that their voice will be heard at a time when they are least able to express their opinion and say who they are as an individual and what they want to happen. During the debates, I have been particularly impressed by the willingness of my right hon. Friend the Minister to recognise the voice of the patient and, in particular, the voice of the carer. New clause 25 aims to support those two groups of people at a time of great difficulty.
When we are admitted to hospital, one of the first things that happens is that a nurse sits at the side of our bed and takes down basic data. She may say, “Who do you want us to talk to? What do you want to eat? What medication are you allergic to?” In fact, she will raise all the things that the hon. Member for Tiverton and Honiton referred to. If we are able to communicate, we might say, “We are allergic to nuts.” I am a vegetarian, so I would say, “Please do not give me any meat.” It is critical information. One could say, “I had this medication and I had an allergic reaction to it, so I should not have it again.” We might say, “This is a medication that I had in the past. I found it useful. If I tell you that I do not want it, please do not listen to me because I found it useful in the past.”
Many of the submissions to the Committee, including MH49, MH14 and MH26, from SANE, the Mental Health Foundation and Rethink respectively, and in particular MH11 from the Princess Royal Trust for Carers reiterate the concerns of carers, family and friends that, at a time of great crisis, when a person for whom they care and about whom they are most knowledgeable is admitted to hospital, they find it difficult to have their voices heard and to access information.
Some mental health service users say that they feel a loss of identity and that their wishes are ignored, which leads to a lack of trust between them and the medical practitioners who are there to support them. It is often said that information is power, but sharing information is also about partnership and inclusiveness. Document MH10, submitted by the Royal College of Psychiatrists, states that
“outcomes are optimised when patients engage early, when they take a full and active role in their treatment and have trust in their psychiatrist or other professional”.
 Partnership and shared decisions make for improved outcomes. New clause 25 is about allowing patients to engage early and to take an active role in building trust with the professionals on whom they rely at a critical point in their life. It would also provide the shared decision making that will be likely to improve outcomes.
 I said earlier that a number of carers have talked to me about feeling excluded. I met with Mental Health Matters in my constituency and with people from local carers centres. They all said that they feel that they would like their voices to be heard. The new clause is about specific pieces of information. It does not define what information should be shared, because that should be what an individual thinks is important—it is their information. I understand the fears and anxieties of tying practitioners to following patients’ wishes when they are inappropriate, but the measure stipulates that they “have regard to”, or are aware of, the “advance statement”. There is no legal binding to the statement, but there should be regard to it. The statement may be withdrawn or replaced at any time, as circumstances change.
 More importantly, the statement would allow a person’s life to continue at a time when they have suffered a loss of capacity. In an advance statement, a patient can nominate the person who they want to pay their bills, or water their plants. It can deal with small issues such as the care of pets. The statement would deal with the important things that allow people to survive, so that their life does not go on hold. Hopefully, it would also mean that if a person so wishes, information could be shared with employers, so that they are no longer excluded from knowing what a patient wants them to know about their recovery and future.
The statement would be a living document; it would be flexible and could be changed. It is based on having regard to rather than compulsion. It is about looking at a new way in which patients, professionals and carers can communicate, in a partnership that allows an open dialogue. Hopefully, it will improve outcomes.

Tim Loughton: May I welcome you back to the Chair, Lady Winterton? May I also change the subject, because I should like to speak to new clause 16, which, slightly oddly, has been placed in this group?
New clause 16 would amend section 58 of the 1983 Act by reducing the requirement relating to medication from three to two months. Given the serious effects of medication and the possibility of patients being given too high a dose without their consent, or even despite their active opposition to such medication, this is too important a safeguard to be jettisoned. The Joint Committee on Human Rights expressed its serious concern about the issue in its recent report and called for a change in the law.
Under the amended Act, the test that the SOAD must apply is changed from
“having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given”
to
“it is appropriate for treatment to be given to a patient if the treatment is appropriate in his case, taking account of the nature and degree of the mental disorder from which he is suffering and all other circumstances of the case”.
 In deciding on treatment, the SOAD should consider the patient’s observations on his or her illness, its impact on his or her presentation, behaviour and relationships and the current treatment, including any side-effects. The views of the responsible clinician and other members of the clinical team are also relevant. Many physical side-effects can result from taking medication—often strong chemicals—including weight gain, diabetes, impotence, disabling movement disorders, lethargy and feeling drugged up all the time. A case has been made, in other submissions to us, that people who are subject to treatment under sectioning should have more regular physical health checks than other people, simply because of the knock-on effect that their medication for the mental health condition is having.
The Act gives an exceptional power to override the choice of those patients who retain the capacity to make their own choices. That is not available for treatment for physical illness. Although the responsible clinician should seek the consent of the patient and listen to his or her views, that often does not occur. As the Mental Health Act Commission has reported,
“Too many patients feel that they are excluded from decision making and the exercise of choice in their hospital treatment and unable to discuss their subjective experiences of therapeutic effect or adverse side-effects. This is likely to exacerbate the likelihood of non-compliance after discharge and may contribute to the problems of revolving-door readmissions”.
The commission lists among its 10 common problems with the administration of the treatment:
“No record of discussion with patient regarding proposed treatment...No record of assessment of patient's capacity to consent to treatment... Patients telling visiting Commissioners that they are not happy taking their medication... when this is covered under a Form 38 certifying their informed consent”,
and so on. All those factors contribute to the case for careful and prompt oversight of patients’ medication, which is what the new clause is about.
 Three months is too long a time for patients to be treated without consent, or with a lack of capacity to consent to treatment that may be causing them physical harm. There were arguments in another place over the length of time that the period should be limited to, if it were reduced from three months. The Government objected to the possibility of 28 days, on the basis that various medication plans were still being formalised at that stage. However, I do not necessarily take that as read. That is why we have come up with the compromise, having listened to the argument in another place, of reducing the period from three months to two.
It is interesting to note some of the statistics. In 2004-05, 18 per cent. of patients had their plans changed as a result of SOAD interventions. Responsible medical officers know that their treatment decisions can be subject to a second opinion. The SOAD provides a check on the RMOs' practice. The oversight provided by the second opinion ensures that RMOs give careful thought to their decisions. The 1983 Act provides a safeguard for medication beyond a three-month period. In recognition of the fact that three months is a lengthy period, the Act introduced a power for the Secretary of State to reduce the period, by order, from three months, but that has not occurred. Under the 2004 draft Mental Health Bill, about which we have heard much, a tribunal would have authorised medication by the end of 28 days.
The Mental Health Act Commission has stated:
“We believe that the current Act provides insufficient protection to patients in the first three months of their treatment under detention, when they may be forcibly given medication in doses or combinations that are outside of product guidelines and recommendations without the oversight of a Second Opinion Appointed Doctor. Some RMOs appear to share our unease: we receive (but have to decline) occasional requests for statutory Second Opinions in relation to such patients.”
During a debate on this part of the Bill in another place, Lord Patel of Bradford, chairman of the Mental Health Act Commission, said:
“I have to ask, a quarter of a century later, are we still content that three months must pass before a patient who is being treated with medication has a right either to give their consent or to withhold it? Should it be three months before a patient is afforded the safeguard of a second opinion, when he or she is being forced to take such medication? I think not. I, for one, am certainly not content. Everything that I believe tells me that three months is too long to withhold a patient’s rights.”—[Official Report, House of Lords, 15 January 2007; Vol. 688, c. 492.]
The Government’s main argument in favour of a three-month period before a second opinion being needed is that it is required for the person’s condition to stabilise. The Mental Health Alliance does not accept that argument and the Government did not in the 2004 draft Bill, where only 28 days was deemed necessary before the review of a care plan by the new tribunal.
 Will the Minister tell us what happened between the introduction of the draft Bill and this Bill for the Government to go forward with the requirement for checks and balances on a person’s medication? Newer medications are available and the guidance on medication is explicit on the time required for it to be effective. In almost all cases, that amounts to a fortnight.
In its recent report on the Mental Health Bill, the Joint Committee on Human Rights stated:
“Although an immediate second opinion is required for any administration of Electro Convulsive Therapy (ECT), in relation to medicines for mental disorder, the patient does not become entitled to a second opinion until three months have elapsed from the first time when medicine was administered during that period of detention... There is now a recognition that the effects of some psychiatric drugs may be as unacceptable to patients as ECT”.
We considered that point in the pre-legislative scrutiny Committee and our report stated:
“Three months is a long time to be in receipt of compulsory psychiatric treatment without the opportunity for review and supervision of the responsible clinician’s decision to impose that treatment, and we consider it is doubtful whether the Government’s obligation under Article 8 to provide effective supervision and review of treatment without consent is discharged by such a long waiting time”.
New clause 16 is a useful addition to the Bill because the Government have not made the case for why the delay should be three months. In three months, a lot of harm could be done to a patient on the wrong level or type of medication. The Government acknowledged that by stipulating 28 days in the draft Bill.
In the spirit of compromise and positive engagement that we have brought to bear on the Committee, the new clause is helpful and constructive in aiming to reduce the time span from three months to two. It is a compromise between what is there now and what the Government originally thought practical. On that basis, I see no reason why the Minister should not jump up and say, “Thank you very much, we will accept the new clause.”

John Pugh: I did not intend to speak, but I was struck by what the hon. Member for East Worthing and Shoreham said. A lot of this issue rests on the empirical claim, which the Minister can either dispute or not, that psychoactive drugs do the business, as it were, within two weeks. If that is the case, three months is a ridiculous period for assessment. However, we need to know whether it is the case.
I will raise another issue now, rather than make an intervention later. What is the process? How long does it take for a person on a scheme of medication, if only for two weeks, to be taken off it? What provision will be made for their care while they are being taken off medication? There is an issue with drugs such as Prozac if a person takes them for a short period and then suddenly stops. That is true not only for serious ailments that people would be sectioned for, but for obsessive compulsive disorder and so on. The person will become worse because the drug will have had some, but not the full effect. We are in pharmacological territory. We can argue about the merits of the particular legislative proposition in front of us, but the matter rests ultimately on clear, pharmacological distinctions and the advice that the Minister may or may not be receiving. I should welcome an indication of that advice.

Ann Winterton: Before I call the Minister, perhaps it would be helpful if I suggested that those who have tabled and spoken to new clauses might, depending on the Minister’s reply, of course, indicate whether they wish to have a Division on them later.

Rosie Winterton: I welcome you back to the Chair, Lady Winterton.
I am a little worried that the hon. Member for Southport occasionally puts the onus on me to make a clinical judgment, which I am incapable of doing. I hope that he will forgive me if I do not completely answer all his questions, unless something miraculous arrives about the pharmacological effects and how long Prozac takes to work. I am not an expert on that.
We have had a good debate on the important issues of recording patient requests and advance directives. I completely understand why those on the Labour and Opposition Benches are anxious to explore such issues.
 New clauses 4 and 25 both deal with the important issue of patient involvement, particularly when a patient lacks the capacity fully to engage in consultation at the time a decision is being made, or when they would otherwise want specific people to know about their circumstances. Hon. Members are so concerned about the matter because we are discussing the sensitive issue of compulsion and how to marry together compulsory treatment with being able to take into account patients’ wishes. It is vital that proper patient involvement takes place. There is a valuable role for advance statements of wishes. However, accepting the new clause as it is worded is not the right approach. The fact that patients are liable to compulsory treatment does not in any way diminish the importance of encouraging them to express their wishes and engage in designing their own treatment. Indeed, that is probably a helpful way in which to get people on the road to recovery, as is the imperative to pay close attention to what they say. Treatment without consent does not—and must not—mean treatment without regard to the patient’s views. We must all be clear about that.
It is also fundamental that, when patients have made their views known in advance, those views should be treated with the same respect as if the patient were giving their view at the time. It is important that decisions and the basis on which they were arrived at are recorded. We would regard that as good practice. However, it is the wrong approach to put such detail in the Bill, particularly the extra procedural requirements that go with it.
The Act contains many requirements to make proper records where decisions are taken that restrict patients’ freedom in the interest of their health or that of others, but I hope I can illustrate why the amendments are not the right approach.
 New clause 4 says that advance decisions to refuse treatment must be taken into account. We are not disputing that, but adding a requirement in legislation to make a separate record and send it to the patient and their nearest relative would contrast starkly with the fact that treatment given against patients’ wishes expressed at the time is not recorded in that way. Because we are dealing with compulsory treatment, we would be making a big distinction between an individual who is sitting there saying, “I don’t want this,” while a clinician says, “Well, that is what is going to happen,” and an individual with an advance decision saying the same thing. We would be making a distinction by recording the decision to treat and giving the record to the patient and their nearest relative.
Creating a statutory obligation to record why a patient detained under the Mental Health Act has not been given the treatment that the patient requested would also differentiate it from other legislation dealing with treatment against patients’ requests. In no other field have we said that an individual can request treatment and be given an explanation why they cannot have it.

Brian Iddon: I apologise, Lady Winterton, for addressing you incorrectly earlier.
Will my right hon. Friend respond to a point now, as it is relevant? I said that I thought that patients’ wishes were already covered in the Mental Capacity Act 2005, which would therefore have an impact on patients being treated in the mental health services.

Rosie Winterton: I shall come to the Mental Capacity Act’s provisions on requests made in advance and why they can be overridden. It is always a clinical decision whether to offer a patient what they ask for. That is no more or less true of patients being treated for asthma than it is of people detained under the Act. It is also important to recognise that patients occasionally have firm wishes about what they do or do not want their nearest relatives to be told. There are times when patients do not want information to be shared, and we must recognise that. We are not trying to deny patients autonomy or to suggest that their views do not matter—quite the opposite.
 New clause 25, tabled by my hon. Friend the Member for Bridgend, would provide for advance statements expressing a patient’s wish that information be shared with nominated people if they should become mentally disordered. I understand the intention behind the new clause. Often a patient might wish for certain people to have access in a crisis to information about them that they would rather not share unless and until their condition reaches such a crisis. Of course, it is often when people are unwell or in crisis that they are unable to express such a wish. When the patient’s wishes are known by those who care for them, such named people should be involved either in the consultation or in the sharing of information as requested. The Government have strengthened that in clause 10, which will change the 1983 Act by stipulating the kinds of issues to be taken into account.
Again, it is important that the issue is addressed in the code of practice. I will be more than happy to see how the issue is currently addressed, and to hear hon. Members’ views. There will be many circumstances in which a person will share with their GP, or with someone to whom they are close, their wish that in certain situations they would like certain people to be told certain things. Proposed new clause 25 covers only some such situations. The views of under-18s, for example, are outside its scope.
On the point made by the hon. Member for Tiverton and Honiton and by my hon. Friend the Member for Bolton, South-East, as I understand it, the new clause would mean that the person who shares their wishes with their carer must write it down for it to qualify as an advance statement. The requirement to share the advance statement with all concerned with the care of a patient—sometimes that could be against the patient’s wishes—is too wide. Hon. Members have made the point that people express their wishes in many and varied ways and at different times. We discussed that when dealing with the Mental Capacity Act 2005. There should not necessarily be one laid-in-stone, signed-in-advance statement because, as my hon. Friend the Member for Bolton, South-East said, things may change. Professionals should record and draw on patients’ wishes at the appropriate time, not necessarily always on a statement that was made at a particular point in time. That was why we discussed how to take an individual’s views when considering the 2005 Act.

Tim Boswell: Will the Minister remind the Committee that a professional would in any case be obliged to consider the patient’s best interest and to act in accordance with it?

Rosie Winterton: The point is that the 2005 Act sets out the parameters of advance decision making. We do not want to replicate that in other legislation. I would like to strengthen the measure in chapter 16A of the code of practice, which states that a decision to override an advance decision should be recorded in a person’s notes. I would like to explore and take advice on being firmer about giving reasons to the individual concerned. The issue of the nearest relative is difficult, because sometimes people will simply not wish for information to be passed on. Looking at that issue might answer hon. Members’ concerns. We would not wish, however, to create difficulties for the patient by, say, taking measures that exacerbated their situation. It is a matter of careful judgment, but I shall go away and look at it. I think that expanding the code of practice might solve hon. Members’ problems.
It will be a disappointment to the hon. Member for East Worthing and Shoreham that the Government have the same objections as before to new clause 16, which would reduce from three months to two months the period after which a SOAD must authorise the administration of medication when a person does not consent or is incapable of so doing as before, not least because there is already a power in section 58(2) of the Act to reduce the period by order. If we wanted to take that issue forward, it would be more sensible to use that mechanism, which allows for proper consultation. The change would be based on evidence and would be done at a manageable and sustainable pace.

Tim Loughton: I know that, which is why I mentioned it earlier. 24 years on, that order has not been used to reduce the time despite all the advances in medication. Therefore, why does it have to take more than 24 years to change that order? Why should we have any confidence that it will happen in the future? The change could happen with this amendment to the Bill.

Rosie Winterton: The issues remain the same. We do not have the evidence to show that the current period is not the right amount of time for ensuring that medication is taking effect and if the medication is changed for ensuring that it has taken effect. That is not a human rights issue. The High Court recently refused leave for a judicial review of the European Convention of Human Rights compatibility of section 53 of the Act on the grounds that, inter alia, the three-month period is too long. We believe that three months provides an opportunity for the treating psychiatrist to reflect on the medications that are to be used on the patient. The likely efficacy of some individual medications can be determined in less than three months, but while a particular medication may have been started soon after the patient was detained, it is often a number of weeks into detention that the overall treatment plan evolves.
The hon. Gentleman asked what happened between the draft Bill and now. The draft Bill was different legislation with a different approach. At 28 days, the tribunal was required to authorise further detention. At that point, it could consider the care plan under that approach. The draft Bill was criticised for the tribunal system, which was said to be too cumbersome and too expensive. We reacted to that by saying that we would amend the 1983 Act.
 There are resource implications. Up to 8,000 more SOAD consultant psychiatric hours could be needed to reduce the detention period from three months to two months. The second opinion doctor appointed by MHAC should have at least five years experience as a consultant psychiatrist. In 2005-06, 251 consultant psychiatrists were approved by MHAC. They made themselves available to be appointed to give the second opinions required by the Act. That role is ancillary to their usual role as consultant psychiatrists. They often have busy caseloads of their own. We must recognise that reducing the period would have quite severe implications.
We believe that the power is already in the Act. If we wanted to reduce the time, we would use the consultation procedures under the Act. We would ensure that the change was evidence based and done in a manageable and sustained way.

John Pugh: Perhaps the Minister could clarify something for me. I do not see why completing the assessment in two months as opposed to three months necessarily leads to any more assessments. That would have more resource implications. Will she explain why we will have more assessments as a result of that change?

Rosie Winterton: Because more patients are detained at two months than at three months.
I hope that with my reassurances over patient involvement hon. Members will not press the new clauses to a Division. I hope that, with my explanation on the change from three to two months, the hon. Member for East Worthing and Shoreham will withdraw his amendment.

Tim Loughton: We have got to the nub of the issue. Despite all the waffle about the order already being there so that it could be looked at, the Government are not going to do it, because it is a resource matter. It is entirely down to resources. Resource availability is more important than the medical effect—adverse or otherwise—on the patient.
I know that the Committee wants to move on. At least we have the truth out of the Minister about the real objections to our amendment, so I do not propose to detain the Committee with a Division on new clause 16.

Sandra Gidley: I feel that the Government are not too far from what we wish to achieve with the amendments. The difference seems to be about whether it is in the Bill. I will withdraw the amendments, but will probably return with an amended form of them on Report.

Madeleine Moon: Like other speakers this afternoon, I am pleased to have some of the Minister’s reassurances, particularly on the respect that will be paid to patients’ views. I am pleased to hear that the concept of consultation and communication with carers will clearly be part of what the Bill seeks to achieve. I am pleased that the home practice will be looked at, to codify how that will be addressed. I am happy to withdraw new clause 25.

Brian Iddon: I am sorry to be pedantic with my right hon. Friend, but will the Minister clarify how the clause on advance directives now contained in the Mental Capacity Act affects this Bill and patients’ wishes, if they have made an advance directive? Surely the Act covers the Bill?

Rosie Winterton: The point of an advance directive is about refusal of treatment, not requesting of treatment. If an advance directive refuses a treatment, then, because we are talking about compulsory treatment, we would want to make sure that advance decisions or directives were taken into account. However, the ability to override the directive would be necessary if the alternative for the patient—an example we used this morning—might be that someone dies. That is where we get to with compulsory treatment. If a patient is refusing treatment and at the same time there is the ability to override that, then the same applies with an advance directive. Somebody might be refusing a particular form of treatment, but the powers of the Act can overcome that.

Question put and agreed to.

Clause 31 ordered to stand part of the Bill.

Clause 32

Community treatment orders, etc

Tim Loughton: I beg to move amendment No. 63, in clause 32, page 20, line 14, after second ‘patient’, insert ‘aged 16 or over’.

Ann Winterton: With this it will be convenient to discuss amendment No. 65, in clause 35, page 31, line 25, at end insert—
‘(6) The fifth condition is that the treatment does not conflict with a decision made by a person with parental responsibility for the patient.
(7) In this section “parental responsibility” has the same meaning as in the Children Act 1989 (c. 41).’.

Tim Loughton: For clarity——if I may have your attention, Lady Winterton, I point out that we have come to the last of the big six areas of amendment in the Lords that many hon. Members might like to speak on: community treatment orders. There are many amendments and some new clauses in five different groupings. I do not know whether you were going to allow a clause stand part, because there is a big matter of principle with community treatment orders, beyond the specific amendments. The first four amendments, including the one dealing with the two lines that I should like removed, are smaller, technical amendments that rely on the conditions already attached to CTOs remaining in the Bill, although the Government will seek to take those out.
I am happy to speak briefly to amendments Nos. 63 and 65—and a lot of what I shall say pertains to amendments Nos. 64 and 66—and then to have what will effectively be a clause stand part debate as part of the discussion on the Government amendments Nos. 23 onwards, which deal with the matter in more general terms. It might be helpful for the Committee if we focused all our bigger guns on that central part, rather than having a clause stand part debate at the end. If that would be helpful, I should be happy to go along with it.

Ann Winterton: Now that the hon. Gentleman has got my attention, I can answer his query. What he proposes is very sensible. I hope the Committee is clear.

Chris Bryant: I did not understand it.

Ann Winterton: Never mind, someone will explain.

Tim Loughton: I am greatly flattered, Lady Winterton. The Opposition are clearly confused, buy we will move on.
Amendments Nos. 63 and 65 are tabled on the assumption that community treatment orders remain—

Ann Winterton: Order. I shall clarify further, because I suspect that everyone is in a muddle. We shall have a wide clause stand part debate, during which the amendments will be debated, briefly or otherwise. Is that clear?

Chris Bryant: No.

Tim Loughton: May I make your clarity a little clearer, Lady Winterton? What we are proposing, and what I hope you are agreeing to, is that we will talk specifically and briefly to amendments Nos. 63 and 65, and amendments Nos. 64 and 66, and then when we come to the third raft of Government amendments, led by Government amendment No. 23, you will permit a more wide-ranging debate on the principle of community treatment orders in place of a clause stand part debate at the end. I think that everybody might find that useful. In the absence of a “no”, I shall carry on talking about amendment No. 63, if that is all right, Lady Winterton. That has taken 10 minutes out of the time for debate, anyway.
 Amendments Nos. 63 and 65 relate to the effect of CTOs on children and why children should be excluded altogether. CTOs are controversial, as we know and as we will come on to in detail later. We are not clear about why the Government have decided that such powers should be applicable to children and young people, particularly given that powers that currently apply to individuals living in the community, such as guardianship and supervised discharge, have a lower age limit of 16. I gather, from the research commissioned by the Government from the Institute of Psychiatry about the international experience of CTOs, that children and young people were not included in the review of the literature.
Under the United Nations Convention on the Rights of the Child,
“the best interests of the child shall be a primary consideration”
In “all actions concerning children”. The amendments would limit CTOs to those aged 16 and over and are intended to find out why the Government feel that they should be applicable to under-16s. What evidence is there to suggest that children and young people will be disadvantaged if CTOs are not available to them? As the Government have made clear, the Bill is not about ensuring that people receive services. Being subject to a CTO is not the only route to receiving appropriate services in the community.
The provisions relating to treatment in the community are complex and confusing. Furthermore, there is insufficient guidance in the draft code to explain how those are intended to work in practice. There are three keys areas of particular concern in the treatment in the community of children and young people. First, there are fewer safeguards for incompetent children than for adults who lack capacity. For example, there is no requirement to involve a person with parental responsibility for making treatment decisions for a child who lacks competence to make such decisions for himself or herself. Secondly, there is no definition of competence or any detailed guidance in the Bill or any draft code on how to assess that. Thirdly, there is no definition for the use of force. That is why amendment No. 63 would add “aged 16 or over” to the considerations.
 Amendment No. 65 would ensure that, where non-emergency treatment is proposed for a child community patient—in other words, a child under the age of 16 who has been assessed as lacking the competence to consent to treatment—treatment will not be given if a person with parental responsibility objects to it. We think that the amendment is needed, because individuals subject to CTOs cannot be treated in the community if they have capacity—or, in the case of a child community patient, competence—to make treatment decisions and to refuse such treatment. However, if the person lacks capacity, in the case of patients over 16, or competence, in the case of a child community patient, treatment can be given if certain conditions are met.
 The Bill states that treatment cannot be given to an adult community patient if it conflicts with decisions made by individuals authorised to make decisions on the patient’s behalf where the patient is not capable of making such decisions for him or herself. We believe that that is an important safeguard, given that the Bill allows treatment to be given, even if the patient objects, as long as it is not necessary to use force against the patient to give it. However, there is no provision for any person to be consulted as to whether the child community patient should be given the proposed treatment. The amendment would introduce such a requirement.
These are probing amendments to find out the Government’s view on the use of community treatment orders for children. What safeguards exist for children comparable to those proposed for adults? I am sure that the Minister will be delighted to answer those queries.

Ann Winterton: The amendments deal with important issues. They seek to protect children and safeguard their treatment, which is an honourable intention, but we do not feel that they will achieve it. It might be helpful if I put the matter in context. We expect very few people to be suitable for supervised community treatment. As hon. Members know, only patients detained for treatment under the Act will be eligible for SCT. Consequently, it will be available only to the small number of children detained.
Even then, most children will not be eligible, because SCT will not be necessary to ensure that they get the treatment they need in the community when they leave hospital. For example, many children will live at home with parents, who can ensure that their daughter or son continues with key treatment in the community if that is necessary to keep the child well. Equally, the home can provide a safe environment for a child to live without endangering themselves or others. For many children, SCT will not be necessary, and if it is not necessary, it is not permitted.
That said, the Government do not think it right to prevent children under 16 from benefiting from SCT altogether, as amendment No. 63 would. SCT is designed to allow patients to be treated in an environment of minimum restriction according to their individual needs and circumstances. It will allow some patients who would previously have been detained to spend less time in hospital and more time at home with their families, an increase in freedom from which children as well as adults must be able to benefit. If we choose an arbitrary cut-off point of 16 to decide who is or is not eligible, we risk discriminating against children under that age when SCT could bring real benefits. That approach would risk contravening European human rights law.
The review of CTOs internationally covered children and young people. It covered CTOs throughout the world, many of which have no lower age limit and included children and young people. Ruling out SCT for children under 16 years old will fundamentally fail to protect them. It would be an unnecessary restriction. If that is what clinicians believe is right for a child and it might mean that a child could return to a home environment, it is important that we accept that it might be best for an individual child. To rule it out completely would be wrong. It would not force anyone to make a CTO on a child if it were not appropriate for that individual.
The hon. Member for East Worthing and Shoreham was right to say that we need to provide very good guidance to practitioners when treating children under the new provisions. We must make sure that we cover the special needs and circumstances of children. My officials have therefore invited experts in such matters, including the children’s commissioner, to work with us on the code of practice.
As I have said, we do not accept amendment No. 65, but that does not mean that we underestimate the vital role that parents can and should play in decisions that are made about what treatment their child should receive. However, the amendment goes too far because it would allow parents to veto treatment on behalf of a child who lacks competence to consent to treatment. It would be inconsistent with the approach taken under the Act. If a clinician’s view is that treatment needs to be provided to a child, for parents to have a veto over that would make it inconsistent with the general working of the Act.

James Duddridge: Earlier, the Minister talked about putting a good target in place for getting children out of adult psychiatric wards—that no under-16s would be on such wards in 18 months. What safeguards is she putting in place in terms of monitoring to ensure that young people are not forced into CTO-type arrangements to deliver the pledge? It is a short-term issue, but an area where extra safeguards might be worth while.

Ann Winterton: We must be absolutely clear that a CTO could be given only if it were right for the individual child. It must not be given as a mechanism for bed management. It is about making sure that the child is properly cared for, and that treatment is provided in the least restrictive environment, if that is what is appropriate at the time.
 I return to why amendment No. 65 is unnecessary. In practice, SCT cannot work in most cases if the parent refuses to allow the patient to be treated. In many instances, a child subject to SCT will be living with a person with parental responsibility for the child. If that person is unhappy with the treatment that the child is to receive in the community—for example, a particular form of medication—he or she will just not be prepared to ensure that the child receives it. If that happens, the patient’s SCT plan would become ineffective. Without the co-operation of the parent, SCT simply will not work. It means that the hospital medical team is most unlikely to consider allowing a child to live with a parent without first discussing the matter with, and taking into account the views of, that parent. That is crucial, and I assure the Committee that we will ensure that it is fully addressed in the code of practice.
There will also be cases in which a child is made subject to SCT but is not living with the person with parental responsibility. It will sometimes be appropriate to consult that person; in other cases, it may not be. It would be wrong to allow such a person to exercise a veto that prevented the child from benefiting from SCT.
I remind hon. Members that clause 10 provides that the views of carers and interested parties is one of the matters to which the application of the principles that will inform decisions under the 1983 Act must apply. A person with parental responsibility for the patient will count as a carer or as an interested party. Their views will, therefore, be taken into account when decisions are made about whether to put a child patient who lacks capacity on to SCT, and about what treatment to give him. The views of whoever is looking after the child will be taken into account—for example, where the child on SCT is not living with their parent, but may be living with foster carers.
 Other problems with amendment No. 65 are that it does not take account of the possibility that different persons with parental responsibility may have conflicting opinions about what is right for the patient. Under the Children Act 1989, the consent of any one person with parental responsibility is sufficient for treatment to be lawfully given to the patient. For example, for a patient to be treated informally, treatment can lawfully be given for mental disorder with the consent of one person with parental responsibility—say, the mother. If the father disagreed, he could prevent treatment only by obtaining a court order prohibiting it. That is irrespective of whether the parents live together or which of them lives with the child.
Because the amendment would allow one parent to veto the provision of treatment, it could make SCT impractical, even if the proposals were that the parent should live with the other person with parental responsibility. I hope, therefore, that, following that clarification, hon. Members will not push the amendments.

Tim Loughton: I am grateful to the Minister for giving a more detailed response than I envisaged. However, she made some useful points and said that the intention was honourable, which was helpful. It was also helpful that she said that the children’s commissioner and other practitioners will be invited to consult as part of the accompanying code of practice. We might argue on another day about what she described as an arbitrary cut-off age of 16, and I do not want to repeat our debates on age-appropriate treatment. We want to move on, because the meat of what is behind this detail is contained in a later strand of amendments. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 22, in clause 32, page 20, line 21, leave out from beginning to ‘and’ in line 32.—[Ms Rosie Winterton.]

Ann Winterton: Before I call amendment No. 64, perhaps it would be helpful if I say that I fear that one or two hon. Members may still be unclear about the scope of debate this afternoon. As far as I am concerned, there will be no separate stand part debate. That was the original intention, even if it was not clear. I will, however, allow debate on each group of amendments to cover clause stand part issues, either the group led by Government amendment No. 23 or any other group to which hon. Members wish to speak.

Tim Loughton: I beg to move amendment No. 64, in clause 32, page 20, line 35, at end insert—
‘(d) the following persons have been consulted about the making of a community treatment order—
(i) the patient;
(ii) any person with parental responsibility;
(iii) any person who the responsible clinician believes will play a substantial part in the care of the patient after he leaves hospital but will not be professionally concerned with the after-care services to be provided to him; and
(iv) the nearest relative of the patient
and the responsible clinician has taken into account any views expressed by the persons consulted,
(e) in this section “parental responsibility” has the same meaning as in the Children Act 1989 (c. 41).’.

Ann Winterton: With this it will be convenient to discuss amendment No. 6, in clause 32, page 22, line 7, at end insert—
‘17BA Making of community treatment order
(1) The responsible clinician shall not make a community treatment order unless—
(a) the following persons have been consulted about the making of the order under section 17A and the conditions to which the patient is subject specified under 17B—
(i) the patient;
(ii) the nearest relative;
(iii) any person with the authority to act on the patient’s behalf;
(iv) one or more persons who have been professionally concerned with the patient’s medical treatment in hospital;
(v) one or more persons who will be professionally concerned with the treatment to be provided for the patient after he leaves hospital; and
(vi) any person who the responsible clinician believes will play a substantial part in the care of the patient after he leaves hospital but will not be professionally concerned with the medical treatment to be so provided, and
(b) the responsible medical officer has taken into account any views expressed by the persons consulted under paragraph (a).
(2) On making a community treatment order in respect of a patient the responsible clinician shall—
(a) inform the patient both orally and in writing; and
(b) inform any person who has been consulted under paragraph (a)(ii) and (iv) of subsection (1) above;
of the matters specified in subsection (3) below.
(3) The matters referred to in subsection (2) above are—
(a) that the order is being made;
(b) the after-care services to be provided under section 117 below; and
(c) any requirements to be imposed upon him under section 17B above.’.

Tim Loughton: That is very generous of you, Lady Winterton, but I will save my general comments until we debate the group whose lead amendment is Government amendment No. 23, where I think they will be most appropriate.
With amendments Nos. 64 and 66, we are giving the Committee an either/or choice. This is to do with giving more details for the conditions under which community treatment orders can be granted. Amendment No. 64 relates to the inclusion of parental responsibility within that.
 The purpose of the amendments is to create a duty for the responsible clinician, before making the supervised CTO, to consult and take into account the views of the patient, the nearest relative and any person involved in the care. We have severe reservations about the extensive use of the supervised CTOs that the Government are looking to bring in, but they must at least be accompanied by these safeguards. That is why I am asking the Minister whether the thrust of what we propose in the amendments has been taken on board. The amendments also ensure that the responsible clinician must inform the patient, the nearest relative and the primary carer about the care plan being proposed.
Under the Bill, a clinician can make a CTO if an approved mental health medical professional agrees. However, there is nothing in statute to require a clinician to consult a patient or the primary carer, who will be responsible for providing most of the care when the CTO is in place. Just as the Minister has already said, child patients will be expected in many cases, although not exclusively, to be with parents or those with parental responsibility who will be providing the care. The onus will be placed on other family members to provide that care for people living at home or back in the community on a supervised CTO.
A duty to consult will help to ensure that the needs of all those providing care for the patient are taken into account when making a supervised CTO. For example, it will ensure that the limitations and conditions placed on a CTO, such as curfew orders or a ban on going to the pub, which we will be questioning later during discussions on other amendments to the clause, are proportionate and have the support of those who are responsible for enforcing them—the carers. The clinicians will be one step removed from the people who are on supervised CTOs. The doctors in the hospital will not be seeing—at all or on such a close basis—their patients who are on supervised CTOs. A similar requirement is in place under section 25 of the Mental Health Act 1983, before a psychiatrist makes a supervised discharge order. That is the closest parallel.
 The responsible clinician and the approved mental health professional may not have met the patient before their crisis. A CTO can be imposed on a patient even if it is their first hospital admission—we will be taking issue with that later on—and may not have in-depth knowledge about the patient’s home life or the needs of the patient’s carers. That could lead to assumptions about the patient and unreasonable expectations on the carers to supervise the patient—for example, transporting the patient or specifying meetings and appointments, policing the conditions or even housing the patient. The amendment also ensures that the responsible clinician shares information with the patient’s family.

Tim Boswell: I defer to my hon. Friend’s expert knowledge in this area, but is he at all worried that carers, for example, or others involved in the delivery of this supervised compulsory treatment order, may be subject to some legal obligation and may be at some legal risk if they are unable to comply with terms set in relation to the individual? Might they be said, for example, to have aided and abetted a failure to comply with an order?

Tim Loughton: That is an important point. It is essential that those people are kept in the picture right from the start, all the way through the duration of a supervised CTO, so that they can ensure it can work to the benefit of the patient, if it is of benefit—we will talk about that again later—and they can discharge their own responsibilities, legal or otherwise, to the patient. My hon. Friend is right.
 The amendment also ensures, as I said, that the responsible clinician shares information with the patient’s families and primary carers. Many carers’ organisations, such as Carers UK and SANE, regularly report that basic information is often denied to those nearest and dearest to the patient. I have heard of a lot of such cases from SANE, where the concerned parents of a son or daughter with severe mental illness problems desperately want to help—as most would—but they just do not get the information enabling them to be as caring carers as they would like to be. The amendment allows for adequate sharing of information with families and the different agencies.

Angela Browning: There is a common practice among the medical profession generally, not just in the area of mental health: once a child reaches the age of 18 and becomes an adult, that patient’s relatives sometimes have a battle, even though the patient is very dependent on them, sometimes for the rest of the patient’s life. More often than not, the relatives are told that the patient is now an adult in their own right, information cannot be shared and they are not going to be told this or that. We need to sort that out, because people are given or assumed to have taken on responsibilities, but with only half the knowledge.

Tim Loughton: My hon. Friend makes a good point and speaks from personal experience. The arbitrary cut-off term that the Minister used is particularly appropriate here. Somebody with a severe disability or a mental illness at the age of 17 years and 11 and a half months does not automatically change their persona or metamorphose into another sort of person when they hit their 18th birthday. So many of the problems that we come across as constituency Members concern the transition of children into adulthood, when they require the support of various agencies or of part of the health service or social services. The structures are not set up—because of rules, regulations and criteria—to deal with someone achieving the age of 18 or 16 or whatever. That is nonsense, because surely those agencies should be there to give the appropriate care and support for people in such a condition. That condition is entirely time insensitive in respect of when they happen to reach the arbitrary date—their 18th birthday in this case.
A Health Care Commission survey shows that too few service users are aware of their care plan. Forty-five per cent. of service users with a standard care plan and 71 per cent. of those with an enhanced care plan said that they had been offered a copy, although every service user should have one by right.
Under compulsion, the need to ensure that every patient has a written copy of their rights and the duties placed on them is surely much greater. This, as my hon. Friend was saying, is a legal document aimed at preventing readmission to hospital. It is equally important that patients are fully aware that care services due to them are free, according to section 117 of the 1983 Act.
If the Government think that CTOs are the answer and that they can make them work, surely the Minister must agree that the carers who in many cases will be those responsible for the day-to-day management of a person’s condition, in a non-medical sense, are fully informed—fully consulted in the first place—and then kept abreast of the requirements of that person while on a supervised community treatment order. On that basis, I think that the amendments are helpful.

Ann Winterton: The content of the amendments is quite familiar and looks remarkably like the provisions that apply to the making of an order for aftercare under supervision, which is what the hon. Gentleman said. However, those are the very provisions that we want to repeal, because they are ineffective and have not been used. One of the reasons is that they are excessively bureaucratic, although they were a good attempt. At the time—I think it was 1995—the previous Government felt that a form of aftercare in the community was needed. The principle that the Opposition are signed up to is there, but unfortunately the form of the measure is such that, because of bureaucracy, it has rarely been used. Despite the fact that the Conservative party, at that time in Government, felt that it was basically the right approach, I think that everybody would admit that the difficulty has been the bureaucracy involved, which is repeated in the amendment.
I reassure Opposition Members that that does not mean that we regard consultation with the patient and/or parties with an interest in their care as unimportant. I believe firmly that, without proper consultation, supervised community treatment will not work, because patients will be unlikely to engage with it. We must recognise that consultation with nearest relatives and carers is important.
 In the rare cases in which the responsible clinician is considering SCT for a child patient, persons with parental responsibility will be involved. That is obvious, but we do not think that the right approach is to put very prescriptive requirements into the Bill. Rather, we want that kind of patient and carer involvement to be seen as far as possible as routine good practice integral to the operation of the Act, an idea reinforced by the good work that we did with the Opposition on clause 10, which contains some of the issues that we expect to be part of the principles of the Bill.
The second part of amendment No. 6 deals with the provision of information to patients and others. The Government do not believe that it is necessary, because the Bill already contains provisions that will have almost the same effect. Paragraph 30 of schedule 3 will insert a new section into the Act concerning hospital managers’ duties to give information to community patients. It will impose a duty to give information both orally and in writing about the Act’s provisions for community patients and the patient’s right to apply to a tribunal. That information must be copied to the nearest relative unless the patient requests otherwise. The amendment would not allow the patient scope to request that his nearest relative should not be consulted. That might be an oversight, given that it is a quite reasonable wish for a patient to have.
In the light of those points, I hope that hon. Members will be reassured by what I have said and withdraw their amendments.

Tim Loughton: Well, I have not been enormously reassured by the Minister during this Committee, but in this case she is right.

Claire Ward: As always.

Tim Loughton: She is not right always. She is right in defining what we are trying to do. She referred to the conditions in schedule 3. Again, we will want to see evidence that they will apply in reality, but because we want to move to the next batch of amendments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ann Winterton: I beg to move amendment No. 23, in clause 32, page 20, line 40, leave out from beginning to end of line 17 on page 21 and insert—
‘(b) it is necessary for his health or safety or for the protection of other persons that he should receive such treatment;
(c) subject to his being liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his continuing to be detained in a hospital;
(d) it is necessary for his health or safety or for the protection of other persons that he should be liable to be recalled to hospital for medical treatment;’.

Ann Winterton: With this it will be convenient to discuss the following: Government amendments No. 29.
Government amendments Nos. 34 to 39.
Government amendments Nos. 31 and 32.
Government new clause 12—Repeal of provisions for after-care under supervision.
Government new clause 13—Commencement of section [Repeal of provisions for after-care under supervision].

Ann Winterton: In view of your ruling, Lady Winterton, I should like to make a few general comments about supervised community treatment. I know that the issue has given rise to a huge amount of comment. Many people have created unnecessary fear among patients and the public by talking about large numbers of people being forcibly detained in their homes and subject to curfews. They refer to community treatment orders as psychiatric antisocial behaviour orders. That has caused a lot of fear among a number of patients. I am sorry that that has happened. I hope to use the debate to reassure them about what we are trying to achieve with supervised community treatment.

James Duddridge: I cannot find a more generous word than timely to describe the way that the Minister stumbled over community treatment orders and supervised community treatment. The point of my intervention was to find out the difference between a community treatment order and a supervised community treatment.

Ann Winterton: Supervised community treatment is the general term A community treatment order is what is given to the patient.
As I have said, in 1995, the Opposition tried to introduce a form of supervised aftercare. I suspect that they had seen the problems that patients experienced after they had been discharged from hospital. Unfortunately, parents, carers and others would often have to stand by and watch as the patient deteriorated to such an extent that they had to go back in hospital for another detention. That could happen time after time. It often happened because people had failed to take medication and to stay in touch with health care professionals.
It is important to recognise that professionals regard the SCT as an important new way to balance patients’ interests with patient and public protection. Quite frankly, those views are not always given the weight that they deserve. As I have said, we must reflect the views of the many families and carers who are trying to look after people with mental health problems. For them, the cases are great personal tragedies. Many of them believe that the treatment is a welcome new way to protect patients and the public. The provision is not a device to subject more people to control on the cheap. It is a measure to enable patients to receive treatment under formal supervision without always having to be in a hospital setting, which is not necessarily the best place for an individual to make a recovery.
If we were the first Government to propose the use of community treatment orders, we could understand the doubters. However, as hon. Members know, we are not the first Government. CTOs have been operating in some areas for more than 20 years. They are very well established across the USA, Canada, Australia, New Zealand and Israel. Since October 2005, they have operated in Scotland. No country in which CTOs have been established has ceased to use them. On the contrary, CTOs are seen as the modern workable way to manage mental disorder in a community setting.
When we started down this path, we were going to adopt the same approach as in Scotland where there has to be no previous detention in hospital before a community treatment order can be given to an individual. We received a lot of criticism for that. We reacted by saying, “If there is a strong feeling about having community treatment orders without having a previous detention in hospital, detention in hospital must precede a community treatment order.” We have already moved a long way in our approach.
It is also important to remember that, in many countries, psychiatrists and patients were found to be in favour of CTOs. In New York, three quarters of the patients interviewed in one study felt that CTOs helped them to get and stay well, and gain control of their lives, without being in a restricted hospital setting, but in the community with their families and loved ones. The ability to get and stay well was an important part of that.

Tim Boswell: If that approach is to be implemented under the Bill, does the Minister accept that the decisions should be essentially clinical decisions and in the best interests of the patient? While, of course, scores should be kept properly for monitoring purposes, will she therefore say on behalf of the Government that there will be no attempt whatever to flaunt the number of CTOs in place as a political argument about how the nation is safer or, indeed, how individuals are safer because of that miraculous event? It should be treated as a professional and clinical matter on its merits.

Ann Winterton: We are under quite a lot of pressure from the Opposition to say that we shall be monitoring CTOs, so it is important that we do that. I suspect that people will want to see the information that flows from that monitoring. It is a matter of getting the balance right because there has been pressure to make sure that we monitor the situation, particularly the number of CTOs that are used, to reassure people that they are not generally overused.

Brian Iddon: One of the criticisms of CTOs that I am picking up is that the Government might not make the resources available. Obviously, there will have to be more intensive monitoring of CTOs than of other community treatments. What does my right hon. Friend have to say to those who make that criticism?

Ann Winterton: It will be the clinician who decides whether such treatment is the appropriate course of action for an individual patient. The hon. Member for Daventry said that it was important that the decision was clinical. That is exactly why we are opposing the changes proposed by the Opposition. They would put unnecessary restrictions on the clinician’s ability to decide whether the treatment was right for the individual patient.
The clinician cannot decide that a CTO could be given, if the appropriate treatment were not available. If one of the conditions was that a person was to be visited by a community team and the community team was not there, it would not be appropriate for a CTO to be given to the individual.

Tim Boswell: The Minister is trespassing into the area that was giving rise to some concern on my part. Either we continue with compulsory detention or we have a supervised community treatment order or another form of order, or we simply discharge the patient. The principles on the fact that we should minimise the restrictions on liberty are set out in respect of the code in clause 10. Will the right hon. Lady at least accept that I am feeling after the concern that she might argue that there has to be continuing detention and not caricature my argument as being about whether there should be supervised community treatment or something else, as if that will in some way restrict the operation of clinicians? I am broadly on the side of freedom as far as is possible, and I would like the law to support that—I do not regard it as inhibitory to clinical judgments. Does the Minister understand that there are some political sensitivities on the issue? By that I do not mean party political sensitivities.

Ann Winterton: The hon. Gentleman is right that we should take the least restrictive approach. That is the reason why the Government feel that CTOs play an important part. We are talking about the ability of a clinician to make a judgment on an individual patient. To use an example that some of us have come across in our constituencies, the clinician may well know that if a patient continues to take medication, they will likely stay well. If not, they will likely become ill. Often, the result is that a patient ends up being taken back into detention, which we are trying to avoid. It is about striking a balance between continuing detention and creating a less restrictive environment by enabling a patient to return to their home to the care of their loved ones. Also, I believe that putting people in a loving environment rather than a hospital helps them to recover.

Ian Gibson: I do not want to miss the opportunity to talk about other countries, to which the Minister referred. The King’s Fund, for which I have a lot of time and with which I work, as I am sure many others do, has produced reports about what has happened in other countries. Does the Minister accept those reports or worry about them? Do the number of compulsory orders grow over the years? It is too early to make a long-term analysis of the situation in Scotland. In New Zealand, there is a slight growth. Does she fear that and does she believe it to be an accurate assessment?

Ann Winterton: My hon. Friend is right. The King’s Fund has been generally supportive of the proposals. I talked to it recently about some of these issues, and I will do so again. I was interested in what it had to say about SCT. We need to bear it in mind that SCT has to be right for an individual. In some countries, there is almost no detention in hospital settings, but there are many community treatment orders. We have to accept that if the resources going into health services increase, the number of people being treated might also increase. That is about taking treatment to people.
The principle of the measure is that it is about ensuring that people can receive the treatment that they need. It would be advantageous if that treatment could be given in a community setting as opposed to hospital. 
I am not saying that there are not wildly different views about supervised community treatment. Different people within the King’s Fund might well have different views about it. We have to ensure that we are weighing the advantages and disadvantages.

Tim Loughton: Before the Minister prays in aid various groups that do not actually make her case, I should say that if she had come to the witness session to which Simon Lawton-Smith of the King’s Fund gave evidence, she would know otherwise. Let me quote from the King’s Fund’s conclusion:
“Homicides by people with a mental illness are unusual and relatively few in number. Many are committed by people who had not previously been in contact with services or had last been assessed as at low risk. It should therefore not be expected that”
supervised community treatment
“will significantly impact on the total number of these incidents. There has been no discernable reduction in the overall rates of homicides by people with a mental illness in Canada, Australia or New Zealand as a result of CTOs having been in place in those countries for some years.”
That is not supportive.

Ann Winterton: We can carry on quoting the King’s Fund backwards and forwards. The King’s Fund’s report certainly warns of risks, such as availability of resources and effectiveness of sanctions, but it also says, in the evidence so far available from Scotland, where CTOs have been operational since 2005, that they are proving successful, but concludes that if benefits,
“such as positive clinical...outcomes for patients, a reduced risk to the public”
become evident, SCT
“is likely to become an accepted part of the range of options for the treatment of mental illness”.
We need to look at where this provision already exists in other countries. We have to ask ourselves whether we believe that it is the right approach. The Opposition in 1995 tried to introduce a similar proposal—supervised aftercare—which was a worthy attempt to recognise that this approach was the way forward. As Members of Parliament, we must all have experience of people coming to our surgeries or writing to us about their problems owing to their son, daughter, or whatever, not sticking to medication or not staying in touch with health care professionals. However, at the moment such people have to wait until the person involved becomes sufficiently ill again, so that they are either a danger to themselves or others, before they can be taken back into hospital.
The provision is simply a way of giving clinicians the ability to say to a patient, “We believe that if you continue to take medication you are likely to stay well. If you stay in touch with health professionals, you are likely to stay well.” I should also emphasise, because this is an important part of what we are saying about supervised community treatment, that it is not about imposing a set of instructions and conditions upon an individual.

Tim Loughton: Yes it is.

Ann Winterton: Perhaps the Committee needs some assurance on the point. The way that a community treatment order would work is as follows. The individual would need to accept the conditions on which the CTO was being given and be given a written copy of those. The conditions would have to be agreed by an approved mental health professional, because if an individual did not accept the conditions of the CTO, it would not work so there would be no point giving it in the first place. This is not about saying, “This is what you are going to do”, with the person sitting there saying, “I don’t accept any of that”, because a CTO will not be given if the individual does not accept the conditions.
I should also say, for example, that if an individual did not stick to the conditions, it would not automatically mean that they would be recalled to hospital. It is up to the clinician to decide whether it is appropriate—whether it is because the person has become a risk to themselves or others—for them, at that point, to be recalled to hospital. This is not the imposing, non-involvement approach that people have sometimes feared it would be. It is much more about sitting down with the patient and explaining the conditions, then the patient accepting the conditions, which will be looked at by an AMHP. If the conditions are broken in some sense, it would not automatically follow that the individual was recalled to hospital if that was not appropriate. As always, the clinician makes the decision on what is right for the patient.

John Pugh: The hon. Member for East Worthing and Shoreham suggested that a barometer of success might be to look for any reduction in the number of homicides. That figure clearly has not moved a great deal when CTOs have been introduced. Is not a proper indicator of the success of CTOs the extent to which there is a reduction in the number of people who are sectioned without any increase in the total number of people who are held under coercive regimes? Would not that be a fair assessment as well as possibly a more accurate one?

Ann Winterton: There is a whole range of factors, which is why we want to monitor the issues carefully. It is important to be clear that there have been inquiries that have recommended the use of CTOs. The John Barrett inquiry is an example. The report on that inquiry said:
“In our view, the only means of securing John Barrett’s compliance with treatment as an out-patient would have been a community treatment order, which is not available under the Mental Health Act.”
 It is important to recognise that that recommendation was made, and to recognise that if CTOs can achieve, for example, greater compliance with medication and greater contact with health care professionals, there would be a reduction in requirements relating to the sort of person who is continually in and out of detention. We should consider all the factors that people want to have considered.
I shall address in due course why we should reverse the amendments that the Opposition have supported. The restrictions have big implications—particularly for potentially suicidal or self-harming patients.

John Pugh: The Government expect that, five or 10 years down the line, we shall see a reduction in people being sectioned—all things being equal—rather than an increase in the total number of people under coercive measures.

Ann Winterton: We need to look at the whole range of measures. I cannot make a prediction; that is why we are monitoring things. We all know the objective. There are people who, on discharge from hospital, do not take their medication or stay in touch with health care professionals, and who become very ill. At the moment, there is nothing that their carers and families can do to ensure compliance, and the Government proposal would be a way to achieve that. Given that many other countries have such measures, and that they reflect the modern provision of community services, it is important to support them.
The Government’s first argument is that the concept was introduced in 1995 in another form. The second derives from the Opposition position that they support the concept in relation to people who are a risk to others but not those who are a risk to themselves. That means that they do not rule it out completely—and presumably neither does the hon. Member for Southport. The Opposition are therefore merely trying to limit the application of the concept, and we disagree because we think that there are real problems with that.

Angela Browning: The Minister is being incredibly optimistic about the level of resources in the community that are available to make the policy effective. In my experience, most people who have had a period of in-patient treatment and then come out into the community do not fail themselves to contact the community services, it is the community services that fail them. There are simply not sufficient resources. When we talk about treatment, medication of course is at its heart, but that is not the only form of treatment. Across the country, particularly in rural areas, those resources are just not there. The Government have brought nothing forward in the Bill that reassures me that back-up services will be there to support people who might be subject to such a treatment order.

Ann Winterton: First of all, 700 new community teams are now available to support patients—a massive change since the national service framework was introduced. I am surprised that the hon. Lady did not mention that change, given that the other day she was talking about services developing in her constituency. The Opposition need to remember that, with community teams and crisis resolution teams, we are trying to expand the role of other professionals. The Opposition opposed that  approach. She cannot have it all ways. The Opposition tabled an amendment that would delete clause 11 and the role of the responsible clinician. We are saying that community treatment has to be available. I am surprised, however, that hon. Members do not recognise that very often the issue is not that the treatment is not available, but that the individual does not turn up for a depot injection, for example. That very often happens, and it is the sort of issue that we are trying to overcome.
I do not think that we have ever claimed that supervised community treatment has all the answers. It is not a magic cure, but it reflects how modern services are delivered. It is available in many other countries, but at the moment it is not at the disposal of clinicians. We need to emphasise that point. We are saying not that clinicians have to do this, but that it is available to them if they feel that it is the right thing to do.
 As to why we wish to reverse the amendments made in the other place, I am afraid that they would result in a limited, stigmatising and, frankly, non-viable regime for a few patients judged to be a risk to others. The amendments would provide no real protection for patients at risk of suicide or self-harm in the community. I find it difficult to understand why the Opposition parties would wish to deny the possibility of having supervised community treatment to suicidal patients, while insisting that patients have to be hospitalised twice before such treatment is an option.

Tim Loughton: What is the Minister’s evidence that supervised community treatment orders would have any impact whatever on suicide rates?

Ann Winterton: The report produced by the national inquiry into suicide and homicide among people with mental illness showed the potential for prevention. Let us remember that 1,300 suicides a year are carried out by people who have been in touch with mental health services. The report showed that 56 people in the last year had committed suicide following non-compliance with medication or loss of contact with services. Those suicides did not occur in the immediate period of discharge from hospital, when medication would often still be in the system, but in the two weeks after that. Of course that does not mean that the suicides would necessarily have been prevented, but there is the potential. I find it extraordinary that the hon. Gentleman feels that it is appropriate to say to a mother, for example, whose son has been terribly ill and who wishes him to be discharged into her care, “If your son were a danger to you, we could put him on supervised community treatment, but because he is a danger to himself, we can’t.” That is a very difficult proposition, but it is exactly what the amendments’ effect would be.
 Tim Loughton indicated dissent.

Ann Winterton: The hon. Gentleman shakes his head, but in the House of Lords, the Bill was changed to restrict supervised community treatment to those who are a danger to others and not to allow it for those who are a danger to themselves—those who self-harm or are suicidal. I cannot see the logical reason for differentiating the two, and I do not understand why he was shaking his head to indicate that that is not what is happening.

Tim Loughton: By the Minister’s own logic, the clinician would still be able to apply a supervised community treatment order to a suicidal patient, whether or not that is defined in the Bill. That is the point. What is the problem? The suicide rate that she is always going on about has been falling as well. I repeat my question: what is the evidence—rather than theory or potential—that the suicide of any of those 56 people in the UK would have been prevented? Where is the evidence from any one of the six other countries using supervised community treatment orders that they lead to a reduction in suicide rates? There is no evidence, and she should admit that.

Ann Winterton: This is curious. As I understand it, the Opposition’s policy, if they ever get into government, is to support the suicide prevention strategy. Part of that strategy is to introduce supervised community treatment for patients who are a danger to themselves and are likely to be suicidal. The hon. Gentleman says that he supports the strategy, but part of the strategy is to introduce SCT to ensure that we can offer that kind of support in the community. I still do not know why he is saying that it would be possible for a person who was potentially suicidal after not taking their medication to be given a CTO when the amendments that he supports say specifically that it could be given only to somebody who is a danger to others.

Tim Loughton: In the spirit of compromise, if I undertake that the Opposition will submit an amendment on Report that will include those who are of harm to themselves, will the Minister agree to keep the Lords amendment, with that additional criterion, as part of the Bill?

Ann Winterton: I simply do not understand how we could have one amendment that says that the treatment is restricted to people who are a danger to others—

Tim Loughton: And themselves.

Ann Winterton: But that is what we are doing by reversing the amendments from the House of Lords—going back to the original position of supervised community treatment.

Tim Loughton: No, you are not.

Ann Winterton: It is like Alice in Wonderland. We are reversing the amendments in order to go back to the original position—that supervised community treatment can be made available to people who are a danger to themselves or to others, and that it should not be restricted to those who have been detained twice. I shall give the reason. There may well be people who have a history of voluntary admission into hospital and of relapse during that time as a result of not taking medication. A clinician should not have to say, “Your son has a long history of going into hospital, not taking medication, not staying in touch with health care professionals, going back into hospital and coming out again. He has done it 10 times voluntarily, but because he has been detained only once, we can’t offer you supervised community treatment.” That could make somebody go through the whole process of non-compliance, relapse, crisis and coming back in, at which point they could be offered supervised community treatment. Frankly, we believe that that is wrong and goes against what the hon. Member for Daventry said about the clinician’s discretion.

Doug Naysmith: I wonder whether my right hon. Friend agrees with my view. I simply cannot understand why the Opposition are trying to be so restrictive of the introduction of community treatment orders. The submission of the King’s Fund to the Committee, about which we have already heard, asks this question:
“What do clinicians and patient groups say about SCT?”
It goes on to answer that question, interestingly pointing to the report that the Royal College of Psychiatrists has given us, and stating:
“Clinicians are divided over the introduction of SCT. In one study involving more than 1,000 consultant psychiatrists in England and Wales, 46 per cent. favoured compulsory treatment in the community while 34 per cent. were opposed to it”.
That means that there is division among clinicians about whether such treatment is useful. Why do we wish in this instance to restrict clinical judgment, about which the Opposition have been very strong in the Committee? Does my right hon. Friend agree?

Ann Winterton: I certainly agree with my hon. Friend, particularly on not trying to restrict clinical judgment. We must recognise the extent to which we have moved on the use of supervised community treatment from the Scottish position whereby it can apply to anybody in the community without their having had a period in a hospital.

Sandra Gidley: I understand the Minister’s point about clinical freedom, but what evidence does she have that the average psychiatrist or clinician will be able to predict accurately which patients will be back in the hospital and which will not? Is there not a danger that the orders will be used widely to try to prevent litigation because somebody has not been prevented from harm?

Ann Winterton: The hon. Lady needs to recognise that there are strict criteria that have to be met for a supervised community treatment order to be appropriate, as there are for being detained in hospital. Decisions can be appealed against either by application to hospital managers or, in some cases, at mental health review tribunals. The matter is about trusting clinicians’ ability to make the right decision and giving them the power, if they wish to use it and if it is right for an individual patient. We need to be clear about the safeguards that are in place.
Perhaps one thing that the Opposition are concerned about is the ability to engage the patient in accepting conditions. I assure the Committee that we will ensure that guidance in the codes of practice for England and for Wales will cover that issue as well as other key issues such as the duties of professionals under human rights law. I therefore hope that hon. Members will support the Government in restoring the position whereby supervised community treatment will not just be restricted to those who are a danger to others, and whereby those who are a danger to themselves will also benefit from them and get the treatment that they often desperately need.
 I hope that hon. Members will support the fact that professionals spend a lot of time examining a patient’s history and talking to their families and carers, who know their circumstances. As Members of Parliament, we also know that there are circumstances in which people come back and say, “He has stopped taking medication again. We want him to take medication, but cannot do anything unless he becomes so ill again that he has to be detained in hospital.” Those are situations that we, as Members of Parliament, come across every week. We should recognise that, remove the Opposition’s restrictions and support the Government amendments.

Tim Loughton: The Minister did not want to respond to any of the interventions that she so generously took, in which she was asked whether her proposals were based on any research or empirical evidence on the impact that CTOs may have on homicide, suicide and hospital readmission rates. If the Government are trying to propose such a radical, powerful new addition to mental health legislation, it is absolutely essential that they have the evidence on which to base their proposals.
 Not once has the Minister produced any evidence to prove that community treatment orders are necessary. We know that that is because there is not any evidence. We know that the Government tried to find some evidence. We know that last January the Government commissioned the Institute of Psychiatry to engage in the most far-reaching research project on the international experience of community treatment orders in those jurisdictions that have experience of them. The report was delivered to the Government last August. The Government were not happy with its conclusions so they told the institute to go away and think again. The authors did and, not surprisingly, there was little change to the proposals. The Government then decided to sit on the report.
 Despite all the pleadings by the Government that it was down to peer reviews and various other things, and after the Government completely sidelined any freedom of information requests, they published, under duress, their report on the international effectiveness of community treatment orders the day after the House of Lords finished their deliberations on the Bill. It was a shameful suppression of key evidence that was absolutely integral to this important piece of legislation.

Doug Naysmith: I have very carefully read the report that the h G is talking about. There is not a shred of evidence that CTOs do any harm either.

Tim Loughton: We are going to do negatives then, are we? Simply because a piece of legislation does not do any harm, it can be introduced.

Doug Naysmith: That is not quite what I said.

Tim Loughton: The Government’s prognosis for such wide-ranging supervised community treatment orders is that they will be a solution. As the Minister said, it will not be the whole solution, but it will be part of a solution to the problem. The orders are being introduced not because they will not do any harm, but because they will help to solve a problem that we know exists.

Doug Naysmith: I said that on the one hand there was no great evidence that CTOs were useful and did good, and on the other hand that there was no evidence that they did harm. As someone who has spent most of their life involved in scientific and medical research, it is not unusual to come across that situation. Then one has to say, “The evidence is not very good, we need to do some more research. We need to carry on trying it out.” Since it has already been tried out in 20 other countries, why should we deny the use of this tool to our clinicians?

Tim Loughton: I am sure that, as a scientist, the hon. Gentleman will agree that scientists do not inflict something on patients, for example, if they are investigating or researching a drug, until they know not only that it will do no harm but that it will do some good—unless he is in the business of thrusting placebos on everyone he comes across. That is an extraordinary admission.
I go back to the research. The most comprehensive research on the international experience of community treatment orders comprised 72 database empirical studies that were undertaken in six countries. The report stated:
“It is not possible to state whether community treatments orders...are beneficial or harmful to patients...Overall, although some stakeholder views are positive, there is currently no robust evidence about either the positive or negative effects of CTOs on key outcomes, including hospital readmission, length of hospital stay, improved medication compliance, or patients’ quality of life.”
So, based on no positive, empirical evidence that they work, we in this country will, under the Bill, impose the most coercive form of community treatment orders in existence.

Sandra Gidley: The hon. Gentleman will have noticed how the Minister was quoting rather selectively from the report when referring to the USA and lauding CTOs. However, the executive summary states:
“The perceptions of CTOs held by different stakeholders were reported in 18 studies and were very mixed, with both positive and negative views expressed.”
Even when it comes something as relaxed as patient satisfaction, the jury is still out.

Ann Winterton: Order. Before I call Mr. Loughton, I wish to make an appeal. If there are any future interventions, will they be brief? We seem not to be making as much progress as we might otherwise have done.

Tim Loughton: It is not through lack of trying on our part, Lady Winterton. We are keen to get to the guts of the matter.
The hon. Lady is absolutely right. Yet again, the Minister quoted selectively. She cited the example of New York, which has a different form of community treatment order. It is far less restrictive and wide ranging than the ones which, without empirical evidence for their efficacy, she is trying to impose on the Bill.
 Let us be clear from the start. We do not oppose community treatment orders per se. That is why the amendments that were tabled in the other place allow their use in certain closely defined circumstances for closely defined sets of patients. That was exactly the conclusion that the pre-legislative scrutiny Committee came up with. For people with closely defined circumstances, we feel that there may be some merit in them and it is at least worth seeing whether they work.
 However, the Government are proposing a much more wide-ranging net that could scoop up many more people. It could be counter-productive, too. What has been most distasteful in the debate on community treatment orders over several months is that CTOs have been put forward against a backdrop of hyping up the dangerousness of people with a mental illness, for which the Government have been shamefully irresponsible. They have quoted all sorts of figures, put out all sorts of press releases and had all sorts of media splurges in tabloid newspapers to suggest that people with a mental illness are automatically dangerous. Their figures do not justify that. The figures from the Home Office show that, in the 1980s, there was no appreciable rise in homicides by people with a mental illness.
As for the past 10 years, in 1997 there were 39 homicides by someone who had a mental illness. That represented 6.4 per cent. of homicides overall. In 2005, that figure had fallen to 30. It was still 30 too many, but it was 30 out of 820. The homicide rate has gone up substantially under the Government, but that figure represented 3.7 per cent. of all homicides. Yet the Government would have us believe that there is a much heightened risk of homicide by someone with a mental illness. Many other classes of people who commit homicide are far more dangerous. It is the most deeply stigmatising thing that the Government could have done to people who have an illness that happens to be a mental illness. They should be ashamed of themselves.

Meg Hillier: I think it is shameful that the hon. Gentleman brings that up in that way. My point is that under extended leave under section 3 and detention under section 2 of the Mental Health Act 1983 many people are effectively on community treatment orders anyway. The effect of the Lords amendment would be to restrict current practice. Does he agree?

Tim Loughton: No. The 1995 amendments to the 1983 Act on supervised discharge were not nearly as coercive and restrictive as what is now proposed by the Government. That was a good attempt to address the problem of revolving door patients. What the Lords amendments are specifically seeking to do is on the recommendation of the pre-legislative scrutiny Committee and the vast majority of members of the Mental Health Alliance. Let me read some of the comments that we have had on the use of community treatment orders.
The Law Society, for example, says that the amendments should be supported, because they are
“based on existing eligibility criteria that are used for CTOs in New South Wales”.
They are based on experience. It went on:
“The overall effect of the House of Lords amendments would be to prevent CTOs from being overused as a substitute for hospital inpatient treatment”.
They raise
“the alarming possibility of CTOs being used as psychiatric ASBOs.”
Those are not our alarmist words but the words of the Law Society.
Mind says:
“If there is one measure in the Bill that alarms service users it is CTOs. Service users fear that they will be over-used; make it more difficult to manage the often severe side effects of medication; be used disproportionately on members of BME communities; be unworkable in rural areas; be harmful to therapeutic relationships; and divert resources away from services....CTOs will not protect the health and safety of the patients or others”.
That is not us, not politicians, but Mind.
The British Association of Social Workers says:
“The Regulatory Impact Assessment also assumes that the government’s version of the CTO will result in a significant reduction in bed usage. It would appear, therefore, that the government views CTOs as a way by which patients generally, not just the ‘revolving door’ group, can be discharged part-way through their treatment when they are still not well enough to accept after-care voluntarily. This is a policy designed to save money, not to protect the public”.

Meg Hillier: Will the hon. Gentleman give way?

Tim Loughton: One moment. The BME network talks of
“the likelihood of racialised perceptions leading to the application of”
supervised community treatment
“on BME people where clinicians feel the individual does not merit detention”
being a particular worry. It says:
“By virtue of extending compulsory powers under the amended Act, with the absence of robust antidiscrimination mechanisms, this is effectively an extending of the factors currently leading to disproportionate sectioning.”
Perhaps the hon. Member for Hackney, South and Shoreditch would like to comment on that?

Meg Hillier: I repeat my point to the hon. Gentleman, because I think he misunderstood me. I have spoken to clinicians and heard different views. There is about a 50:50 split in the Royal College of Psychiatrists. We had the figures from my hon. Friend the Member for Bristol, North-West earlier. Current practice is that on extended leave people are released for community treatment. One consultant psychiatrist said to me that removing the words “requiring hospital treatment” from the current Act would effectively give us community treatment orders. The hon. Gentleman is deliberately hyping this for his own purposes, but clinicians have told me that we already have current practice and patients have told me that they are not all necessarily against CTOs.

Tim Loughton: Under the 1995 terms, where can the hon. Lady point to the extensive restrictions on movement, behaviour and other attitudes of a patient? They were not included. We are now looking at a different beast altogether. That is the point, and it is what everybody outside and service users fear most.
The Children’s Commissioner for England is not a fanatic: he is appointed by the Government and we generally agree that he has done some good work, yet he has stated that the CTO provisions
“are complex, cumbersome and confusing.”
The commissioner went on to say:
“There is insufficient guidance in the Draft Illustrative Code on the Mental Health Act 1983 (‘the draft Code’) on how these provisions are intended to work.”
He also believes that
“there are insufficient safeguards for treatment without consent”. 
The National Perceptions Forum states:
“There is strong evidence that CTOs are not necessary, appropriate, or therapeutic—they may instead be counterproductive and unworkable. They may drive some people away from services and cause suicides. They contradict this government’s choice in the health service policy—it is supposed to be for all, but excludes”
—excludes—
“mental health patients.”
The National Perceptions Forum submission also states that
“some people will end up on long-term compulsory medication with dreadful side-effects, including causing life-threatening illnesses, including in young people... Someone could be required to live in a badly run and uncaring hostel/home and suffer in silence, or someone could be required to attend a day centre where there are other people he/she just doesn’t get on with...It is very likely to be the case that some people may find their lives made so miserable by CTOs they could go underground or commit suicide.”
Those are not our words; they are the words of mental health charities and service providers whose members and patients have real fears about the effects of CTOs. 
Let us look at some of the fallacies that the Government have insisted on circulating to support CTOs. There is no evidence to support the proposal that people will be prevented from committing suicide by CTOs. There is no international evidence and none from the confidential inquiry—it is an entirely theoretical argument.
Another fallacy is that CTOs will prevent patients from being re-hospitalised. In Scotland, where CTOs are different from here—many would accept the forms of CTO that apply in Scotland—the experience is that between 10 and 20 people are re-hospitalised each quarter out of a total of some 300. There is no power to ensure that a patient abstains from a particular conduct in Scotland, yet the Government are keen to impose such provision here. When we look at the Government’s calculations of how CTOs will work here in comparison with Scotland, we can see that they assume that, in the first year, 2 per cent. of detained section 3 patients in England and Wales might be discharged on to a CTO. However, if the experience of Scotland is replicated, where in the first six months 23 per cent. of all hospital-based orders were varied from patient discharge to CTO, that assumption will be a significant underestimate.
 The Government estimate that any one patient is expected to spend nine months on a CTO, which is significantly longer than the average length of time—109 days or three and a half months—for which patients are treated in hospital. Thus at any one time there are likely to be more patients subject to a CTO and detention in hospital than are currently subject only to detention in hospital. Compulsory treatment will take longer and bed numbers will be limited. So the Government’s own calculations on how many people will be affected, as well as on cost and resource implications, fly in the face of the experiences of Scotland and other parts of the world.
There is yet another fallacy. The Government believe that CTOs would not skew resources within mental health services, which, as we know, are in any case hard pressed. However, there will have to be a concentration of staff and resources on CTO patients, which will mean less time and resources for voluntary patients.
 There is also a perverse incentive. The blame culture in which mental health professionals work creates an incentive for those seeking to cover their backs to use extra coercive powers even though that might not be necessary or desirable. If a patient who is released from a secure hospital and not put on a secure treatment order turns out to be one of the small number who subsequently do harm to themselves or someone else, the flak will come back to the professional concerned. A question will be asked as to why they did not insist on a supervised CTO being attached as a condition of release.
Another consideration is how long CTOs will last, and it has been defined by Professor Genevra Richardson as the lobster pot scenario. I shall try to introduce amendments that would impose time limits, because under the Government’s legislation, a CTO might be renewed again and again. CTOs are easy to get into and difficult to get out of. The experience in Scotland is that more people are coming on to CTOs than are coming off them.
 Overall, we therefore feel that the case for widespread use of supervised community treatment orders has not been made, and that the Government’s own research does not support their aim. That is why after much deliberation in the House of Lords, a very sensible amendment was made to ensure that only a closely defined set of revolving door patients—those about whom the Minister is most concerned—should be covered by supervised CTOs. That approach is perfectly reasonable. It met widespread support from most if not all of the parties in the House of Lords, including from some Labour peers, it has the approbation of the vast majority of Mental Health Alliance members and it gives assurance to service users.
If the legislation is enacted in the form that the Minister wants, service users will be deterred from presenting for treatment in the first place. People with mental illnesses will be driven under the clinical radar, and potentially the most dangerous such people are those who do not present and whose condition festers without proper medical treatment. That is what the Minister risks creating, and that would be the counter-productive effect of such legislation. Far from the Opposition playing fast and loose with the safety of the public or of individuals, which the Minister accuses us of, it is the Government who, on the basis of unfounded evidence, could affect public safety.
On the matter of risks presented by people to themselves, the Minister failed to mention that section 25A of the Mental Health Act refers expressly to such people. They can therefore be supervised under that provision. The extra coercion relates to the protection of others.

Ann Winterton: The hon. Gentleman says that he will support supervised community treatment for a certain group. The Government are concerned that that position would in effect exclude suicidal patients from obtaining treatment. He then points to another legislative provision that he claims covers such people. Why does he want a confusing scenario with two sets of approaches: one for people who are a danger to others and one for those who are a danger to themselves? If he is so unsupportive of the idea of getting help to people who are suicidal, why did the previous Conservative Administration try to introduce that concept into the 1983 Act?

Tim Loughton: That is a total caricature of our suggested proposals and it is unhelpful to the debate. I have told the hon. Lady why the House of Lords deemed that it was unnecessary to have an extra safeguard for people who are at danger to themselves. The reason is that it is dealt with by section 25A.
I have already offered, in the light of this debate, to table on Report an amendment for the inclusion of those who pose a risk to themselves in addition to those who pose a risk to others. That should address any concerns that the Minister retains. The caricature that the Opposition are in some way playing fast and loose with the safety of the public and of individuals who are at risk of suicide discredits the position that all of us in the Committee are trying to take.

Ann Winterton: If the hon. Gentleman is proposing an amendment whereby supervised community treatment covers people who are a danger to themselves, for instance because they are suicidal or self-harming, why is that different from the effect of reversing the position in the Bill back to the original one, which covered such people as well as people who are a danger to others? We want to revert to that position. The hon. Gentleman seems to be saying that he will table an amendment, but I do not understand why he is not supporting the Government’s current position.

Tim Loughton: The Minister is not listening. We support the clause as it stands. I am offering to include in clause 32(5)(c), along with
“it is necessary for the protection of others from serious harm that he should receive treatment”,
the words,
“where it is of significant harm to himself”.
If the Minister thinks that that reverts to the Government’s original position, I am delighted. If that is so, we will have that amendment in and the Government can get rid of the other amendments and agree with our position. She does not seem to know what she is talking about.
I have tried to make my case in the spirit of wanting to protect the public and people who are at risk of harm to themselves, but I genuinely believe—and this a belief shared by so many people in the mental health world—that forcing through such coercive and wide-ranging community treatment orders that have no parallel anywhere else in the world, without any evidence for their efficacy, would make a counter-productive measure that could lead to more people going underground. That is not in their interests or those of the public at large.

David Kidney: We are debating the minority of patients who can, even now, be subject to some restrictions when receiving treatment in the community and would, under the Government’s proposals, again, receive treatment under restrictions in the community. It is worth reminding ourselves that the vast majority of patients who receive services in the community do so voluntarily.
My other point is a legislative one. We are placing this provision in section 17 of the 1983 Act, which already, as my hon. Friend the Member for Hackney, South and Shoreditch has tried twice to tell the hon. Member for East Worthing and Shoreham, allows leave, including extended indefinite leave, subject to any conditions at all that the supervising clinician wants to impose, with no restrictions, as long as the conditions are for the benefit of the patient or the protection of other members of the public. It is worth mentioning that that has been law since 1983.
Section 25, which the Government are seeking to replace with CTOs, deals with supervised discharge, which has been in place since 1995, under a Conservative law. It is true that it was estimated in 1995 that about 3,000 patients a year would be under such compulsory supervision, but in fact there are only hundreds each year. A study conducted in 2000, reported in PsychiatricBulletin, volume 24, entitled “Consultant psychiatrists’ experiences of using supervised discharge: results of a national survey”, obtained a 100 per cent. response from psychiatrists using supervised discharge at that time. In 77 per cent. of the cases in which supervision had been in place for more than two months, the treating psychiatrist described it as “helpful or very helpful”. Individual comments were made that the conditions were too restrictive, but people wanted them to be included in wider powers. It is worth bearing that in mind.
I support CTOs and the Government’s proposals, because the pool of those who are potentially subject to CTOs are those who are already compulsorily in hospital, so there is no question about people in the community being picked on and having conditions imposed on them. Such people are in hospital and the choice is whether they are treated in hospital or out in the community. In respect of the least restrictive approach to compulsory treatment, I agree with Dr. Angus Bell, in MH63, who says:
“Least restrictive means in my view “at home” and not unnecessarily in hospital!”
I want to draw Committee members’ attention to research by Gibbs and Dawson in the Journal of Mental Health in 2005 in a study of community  treatment orders in New Zealand, an area of jurisdiction that has had this kind of law for 10 years, so it is mature. That report concluded:
“The usefulness of community treatment orders is accepted by most patients under them in”
New Zealand,
“as well as by most psychiatrists. Critical factors include the quality of therapeutic relationships and the structure provided for community mental health care.”
People say that there is no evidence because the Institute of Psychiatry tells us that, so I looked for Gibbs and Dawson in the bibliography in the institute’s report and found it—but it says, in a footnote:
“This paper published after completion of the searches for this review.”
So there is emerging evidence that CTOs can be beneficial. Of course we must be cautious, because it is not yet clear what the evidence is telling us. The last of the Government’s proposed conditions that can be imposed on community treatment, the one about the person’s behaviour, requires particularly careful handling.

Charles Walker: First, may I take this opportunity to apologise for my bad-tempered contribution last Tuesday? It was discourteous to you, Lady Winterton, and particularly discourteous to the Minister. I apologise for that.

Ann Winterton: Order. Could I ask the Committee to listen to the hon. Member who is speaking? There is far too much background noise going on.

Charles Walker: Thank you for that protection, Lady Winterton.
I should like to quiz the Minister briefly on some numbers, and she may or may not have time to respond. I read the briefing from the King’s Fund and thought it well balanced. As we have ascertained, it examined CTOs across international jurisdictions and pointed out that across the 71 jurisdictions, the number of CTOs per 100,000 people ranged between two and 60, depending on where the threshold for compulsion was set. It also examined Scotland, where the number seems to have settled at about 5 per 100,000.
The King’s Fund estimates that in England and Wales, if the Bill becomes law as the Government intend, the number of CTOs will settle somewhere between 7,800 and 15,000, which it points out is well above the Government estimate of 1,450. If the figure does fall between 7,800 and 15,000, that is between 15 and 26 people per 100,000 who will find themselves on CTOs, compared with the Government forecast of nearer three per 100,000. In the few minutes left, I hope that the Minister has time to put our minds at rest about why that discrepancy will exist. Given the concern about the number of people who will be on CTOs, will she keep a careful eye on their use to ensure that they are not overused and that we are nearer three to five per 100,000 than the 20 to 25 per 100,000 estimated by the King’s Fund?

John Pugh: I have reservations about the CTOs, but I would like to appeal for a measured discussion on them. I do not think that we have hitherto had that. The Government were accused of stirring up alarm among the general public about what mentally ill people might do, and we subsequently had an exhibition of alarm being spread among people who are mentally ill about what the Bill might do. When we examine Hansard in the cool light of day, I think we will see that it was suggested that the introduction of the Bill could lead people to suicide or to go underground. Simultaneously, the claim will be found in Hansard that all research into CTOs so far shows neither a negative or positive effect. Clearly, those things cannot simultaneously be true.
 In principle, there is no case against CTOs as a therapeutic alternative to sectioning. They are not better than voluntary co-operation, and they have to be adequately resourced. They are widely used worldwide and there is an argument about their relative effectiveness. The best that can be said, as it has been, is that the jury is out on that. There is an assessment problem, because people under CTOs in all countries do not form a homogenous group. Regimes are different, and exactly what a CTO means in one country is not necessarily the same as in another. It is difficult to know how one should conduct a study and whom one should compare. I have read some of the literature in appreciable detail, and that is broadly the conclusion that I have come to. With whom should we compare people on CTOs—existing in-patients, or other patients who are seen on a voluntary basis?
The real test would be to take three identical, appropriate groups of people who we agree ought to be on CTOs and do absolutely nothing with one group, put another on CTOs and offer the third the possibility of voluntary co-operation. There are ethical considerations as to why one should not conduct such an experiment, but it is the only thing that would establish satisfactorily the truth of the matter.
There would still be the problem of how to assess the results. Should they be assessed in terms of therapeutic benefit to the individual or should we, as in the cases of drugs such as Aricept, bring in the effect on carers and the community at large? One can imagine it being a formidable task for NICE to assess the benefits of CTOs. It is not a piece of work that NICE would immediately look for.
 None the less, I think that all parties share the general presumption that we do not want carte blanche, for good reasons. The civil liberties considerations are important, but it has also been said quite legitimately that a considerable element of coercion is therapeutically negative. There is a severe possibility of misuse of two sorts. One is the use of a CTO where it is not necessary because the patient can be helped in some other way. The other type of misuse, which is very different, occurs where we can simply afford to let the patient be sick. I think that we do accept that. If I may go on a slight discursion, I will get home tonight—

Tim Loughton: Maybe not.

John Pugh: Maybe. Tomorrow, one of my regular clients will appear in my surgery. He will have left three letters in my letterbox—full letters, with lots of detail. He is a gentleman who believes that lawyers and doctors conspire against him, that his telephone is being intercepted and that he is being particularly victimised by a Member of the House of Lords whom  I shall not name but who, according to him, sends people over to where he lives in order to intimidate him.
He has an obsessive need—that is where his illness takes him—to see his MP on a regular basis. At one stage, I discovered that he was living outside my constituency and in that of another MP. I pointed out to him that there was a strict parliamentary rule, and he came back a week later with a note from the MP saying that it was perfectly OK—he would make an exception in that case. I referred him to his doctor. I said, “Go and get me some indication that you are in fact as well as you say you are.” He brought back a letter saying that he had been referred by his doctor to psychiatric services, where they pronounced him to be an interesting man with no particular problems.
He is a man with a mild case of paranoia, and he is never going to get help. He is definitely never going to seek help. He describes himself as miserable, and I guess that at times he is. He is 80, and has a lot of health problems to come. But he is not a case for a CTO, because society has simply decided that he can be ill, even though therapy would help him at this juncture and would have helped him in years gone by. There are a lot of people whose ailments we would like addressed, but they never will be, and we accept that.
However, there are certain structural features of the CTO legislation that the Government have not got right. If we are to have a CTO at all, we must have clear selection criteria. The Minister and the Government are suggesting that people should at least be sectionable before being put under a CTO. That seems to be the line being pursued. One could almost call it sectionable-plus, because a certain amount of prior detention is required. There must be robust protection against needless renewal—we have reservations about that, to which we shall come later—and there must be as little coercion as necessary. Clearly, that does not apply to the measures, because psychiatrists have almost total freedom to forbid any activity by any person under a CTO. That must be addressed.
 The distinction between the Government and the Lords is that the Government want people to be sectionable-plus, while the Lords want people to be sectionable-plus-plus. One might ask why the conditions for a CTO are set to a higher threshold than the conditions for being sectioned, because that is what appears to be the case.
It all comes down to one fundamental reservation about the possibility for growth, expansion and the use of CTOs beyond the current remit—for mission creep. All the things that the Lords are trying to do would arrest that development. In doing so, they might well omit suicidal cases, which the Minister would like to see included. Surely, given the empirical evidence across the world that CTOs suffer from mission creep, the Government need to address that problem and address it in a better way than the amendment that they have tabled today.

Ann Winterton: I shall be brief. First, I thank the hon. Member for Broxbourne for his apology, which is certainly accepted. I reassure him that the estimates that we have made will, of course, be monitored. I think that hon. Members wanted to know that we will be monitoring the number of people on CTOs; their ethnic origin; the length of time of the CTO; the number of recalls to hospital, and the number of revocations of CTOs.
We are also carrying out research to examine how the SCT is working in practice, and collecting evidence about which patients receive SCT and what the benefits are, so that we can have an ongoing discussion about how to ensure that SCT is working properly.
I think that the hon. Member for East Worthing and Shoreham was making an offer to extend, as the Government wishes, the use of SCT to patients who may be suicidal or self-harming. I am very grateful to him for making that offer. In the light of that, I hope that he will not vote against the amendments that the Government are moving today.

Question put, That the amendment be made:—

The Committee divided: Ayes 12, Noes 9.

Question accordingly agreed to.

Tim Loughton: I beg to move amendment No. 3, in clause 32, page 21, leave out line 46.

Ann Winterton: With this, it will be convenient to discuss the following amendments: No. 4, in clause 32, page 22, line 7, at end insert—
‘(8) A community patient or his nearest relative may make an application to the Mental Health Review Tribunal to vary or suspend any or all of the conditions imposed under section (3)(a), (b), (d) and (e) within the relevant period or if substantial variations have been made by the responsible clinician under subsection (4) above.
(9) In subsection (8) above “the relevant period” means—
(a) six months beginning with the day on which the community treatment order is made; and
(b) the period or periods for which the community treatment period is extended by virtue of the report.
(10) Where application is made to a Mental Health Review Tribunal by or in respect of a community patient under subsection (8) above the tribunal—
(a) may recommend that the responsible clinician consider whether to vary or suspend any or all of the conditions imposed under sections (3)(a), (b), (d) and (e) of the Mental Health Bill [Lords] 2007 (c. ); and
(b) may further consider the patient’s case if the responsible clinician does not make all or some of the changes recommended.
(11) Nothing in this section restricts the power to make applications to tribunals under section 66.’.
No. 5, in schedule 3, page 63, line 27, at end insert—
‘(d) Where application is made to the tribunal by or in respect of a community patient and the tribunal does not direct that the patient be discharged, the tribunal—
(i) may recommend that the responsible clinician consider whether to vary or suspend any or all of the conditions imposed under section (3)(a), (b), (d) and (e); and
(ii) may further consider the patient’s case if the responsible clinician does not make all or some of the changes recommended.’.

Tim Loughton: As we have had the general dust-up on the CTOs, I will not take long to move the amendment.
The amendments are intended, if we are to have CTOs in the form that the Government want, to put more conditions on those orders.
Amendment No. 3 would remove the extra condition on CTOs about patients abstaining from particular conduct. The point that I tried to make earlier was that the form of CTO that the Government are trying to push through here is far more wide-ranging and stringent and imposes far more coercive measures on patients than is the case anywhere else in the world, as far as I can see.
Although the Government have made the case for compliance with medication, the legislation would give enormous powers to place restrictions on where someone could live; what pub they may or may not be able to visit, and even to impose a curfew that they may have to adhere to. I am afraid that those lifestyle and social considerations are more akin to what we have in ASBOs imposed under criminal legislation at the moment. That is why the Law Society and many other bodies have called the CTOs psychiatric ASBOs. It is likely that the use of CTOs will impact on key aspects of a person’s life and dictate with whom they can associate and places that they can go, even though they will not have committed an offence.
 The draft code of practice states that the aim of the conditions is to highlight to the patient what is expected of him while the order is in force. However, surely such language implies a punitive use of the orders, rather than the positive provision of services portrayed by the Government. Refraining from such behaviour is likely to be unachievable without a great deal of support. In any case, it is clear, for example, from the widespread national concern about drinking and drug-taking that merely telling people not to drink or take drugs is not an effective health strategy.
The Mental Health Act Commission has raised serious concerns that over time those provisions might be used to provide controlling arrangements, perhaps for young black people thought to be drug addicts. They could then be placed on the equivalent of an ASBO, but run under the aegis of the Mental Health Act. That is a very serious concern.
 Even the National Forum for Assertive Outreach, which is a strong supporter of CTOs, has agreed that it  would be morally wrong to place conditions on a CTO preventing a patient from visiting the pub or from begging. In addition, we believe that the extent to which a mental health professional will be able to keep a close eye on an individual has been greatly overstated. In reality, it would be left to the carers to police the conditions of the CTO—for instance, to ensure that the patient does not go down the pub or is back home by a certain time. Surely, that will add to the already onerous burden on those carers. We must consider the position of carers.
 Amendment No. 4 is intended to ensure that conditions placed on CTO patients are reasonable and that the patient has powers and mechanisms to challenge them. Amendment No. 5 would amend schedule 3 so that a tribunal could recommend responsible clinicians to vary or suspend conditions if a CTO is to remain in place. The amendments would give a patient on a CTO the right to appeal to the mental health review tribunal against any of the conditions imposed. Surely, that must be right. If we are going to impose a penalty or restriction on somebody, just as if we are going to make something a crime, then how somebody could challenge the basis of that prosecution or restriction of their liberty must be made explicit. If the mental health review tribunal found that any of the conditions were unreasonable, it could recommend that the responsible clinician change the conditions and order a further hearing if it is not complied with. That is similar to the existing power of the tribunal to make recommendations to the clinical team.
 It is important that conditions are reasonable and that the patient can challenge any unreasonable requirements. The responsible clinician and the approved mental health professional might not have met the patient before the crisis, as I have said, so how could they be in a position to determine the home life, and social and lifestyle choices of that patient when back in the community? They would not have firsthand experience. Although the supervising clinician could be sympathetic to any such case made to them by a patient, the right to challenge restrictions should not hinge on the good will of a clinician.
The Joint Committee on Human Rights concluded, in its report on the Mental Health Bill, that to ensure compliance with the Human Rights Act
“a patient should be entitled to seek review of the conditions before a Mental Health Review Tribunal.”
It concluded that the right to an appeal is an important safeguard of their proper use. Those are safeguards for patients whom the Government now want to place under potentially highly restrictive conditions on how they can lead their life—we are not just talking about medication.

Doug Naysmith: Does the hon. Gentleman not realise that the patients about whom we are talking will have been to hospital at least twice and be used to conditions much more restrictive than those they will find when released into the community to stay with their loved ones? Those restrictions would probably have been even more draconian in hospital than in the community.

Tim Loughton: Absolutely. We hope that people will be able to return to some form of “normal life” because of the treatment that they receive. Nobody is trying to suggest that those highly controlling conditions in a hospital should be replicated in the community. The whole point of the Minister’s argument is that this is some form of step down, but we are trying to ensure that there are proper checks and balances that appreciate and respect the patient’s rights. Going beyond just ensuring compliance with medication imposes severe limitations on the liberty of that person to try to get back to normal in the community.

Angela Browning: Does my hon. Friend agree that another group of people who are often subject to punitive restrictions are those who are subject to a probation order, but at least they have had the benefit of going through the criminal justice system?

Tim Loughton: Indeed. My hon. Friend has experience in that area.
I do not wish to detain the Committee any further. These are useful amendments and I hope that the Minister will leap up and say, “Of course you are right. We will take them.”

Ann Winterton: I think that there has been a lot of misunderstanding on the issue of conditions. They are a way of helping patients to live successfully in the community. They let the patient know what the professionals responsible for his care think he needs to do well. I must return to a point that I made earlier: the point about supervised community treatment and community treatment orders is that, unless the patient accepts that the conditions keep him well, there is no point in imposing them. We can tell someone when he is discharged from hospital, “We are going to impose this on you.” However, should the patient not accept it, there would be no point in doing it. The whole idea is to get the patient to accept that these things keep him well in the community.
 I should emphasise that compliance with the conditions can be a marker of how well a patient is managing life in the community. A failure to comply with conditions may mean that the patient needs to be recalled to hospital for treatment to avert a risk of harm to himself or to others, but that is not an automatic consequence of a failure to comply. The patient cannot be detained in hospital again unless the conditions for detention in hospital once again come into play: the individual has become a danger to themselves or to others, and treatment can be given only in the hospital setting.
 I shall come on to abstention from behaviour, which is the condition that the hon. Gentleman is particularly concerned about. On the first condition—place of residence—it may be that the patient agrees and accepts that living with their family helps them to stay well. That is when we talk about residence. It might be that taking illegal drugs always leads to a patient becoming very ill—we hear such stories over and over again—and that is the issue about the final condition, which the hon. Gentleman has talked about.

Angela Browning: Within the criminal justice system, a court has the right to waive a prison sentence where the person is agreeable to a drug or alcohol treatment centre programme on the basis that should they fall through the net, they go back to a prison sentence. The amount of support that goes into supporting a drug addict in such circumstances is surely far more in terms of resource than what the Minister is proposing.

Ann Winterton: I return to what I said. Community treatment orders will depend on the treatment being available. We are talking about abstention from a particular thing, such as drug taking, that all concerned know can make the patient ill again.
 On the formal right of appeal against the conditions, I hope that hon. Members will accept that it is not appropriate for the tribunal to have a role in reviewing the conditions for a CTO. The tribunal is there strictly to decide whether a patient meets the criteria for detention or for supervised community treatment, as the case may be. Decisions on treatment are outside its remit.
The expectation is that, first, the patient will accept that the conditions are right; secondly, they must be examined by an AMHP; and, thirdly, there are all the rights of appeal to the mental health tribunal and to hospital managers, if it is felt that the conditions for SCT were no longer applicable.
I hope that that explains why we cannot accept the amendment, and that the hon. Gentleman will withdraw it.

Tim Loughton: I really do not think that the Minister has been listening. This is a substantial restriction of liberty that is being placed on individuals, and it is one above many other things that we believe will act as a disincentive for people to engage voluntarily with mental health services in the first place. Ensuring that someone takes their medication is one thing, but having severe restrictions placed on their lifestyle without due process of law, with all the curtailments that that brings about, absolutely smacks of an antisocial behaviour order. This piece of legislation belongs with the criminal justice system, not the health system. On that basis, I intend to press the amendment to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 12.

Question accordingly negatived.

Amendments made: No. 24, in clause 32, page 23, line 28, leave out from beginning to ‘the’ and insert ‘in his opinion,’.
No. 25, in clause 32, page 23, line 34, leave out subsection (5).—[Ms Rosie Winterton.]

Tim Loughton: I beg to move amendment No. 2, in clause 32, page 24, line 42, at end insert
‘for a maximum of three years in total’.

Ann Winterton: With this it will be convenient to discuss Government amendments Nos. 26, 27 and 30.

Tim Loughton: I shall not detain the Committee long. Rather unusually, I seem to be leading on a group including Government amendments, so the length of the debate will depend on how long it takes the Minister to introduce her amendments afterwards.
The amendment goes back to the lobster pot concept that I mentioned earlier, which was raised by Professor Genevra Richardson. It is about time limits being placed on CTOs, and whether somebody can get out of the system having been much more easily scooped into it—the lobster pot. We are questioning the time scale in the Bill. It was a recommendation of the pre-legislative scrutiny Committee that there should be a maximum for CTOs of three years in any five-year period.
The amendment endeavours to insert a maximum time of three years. If someone’s condition had not improved to the extent that he or she can be discharged in the proposed time of three years, surely that would suggest that the CTO has failed to work and therefore needs to be reviewed.
 Being a revolving door patient is not a permanent condition. It usually lasts for a short period, while a person comes to terms with a diagnosis, finds out which treatment or combination of treatments is best for them, re-establishes a life in the community—possibly after a lengthy period in a psychiatric hospital, which can involve going from living alone to having to live with strangers with similar conditions—establishes a therapeutic relationship with a community psychiatric team or is referred to and engages with the various resources available, such as day centres, employment support, therapeutic support and housing support. Consequently, CTOs should be seen as a shorter-term option to help patients through a period of crisis when they have become a revolving door patient, not orders that should be renewed indefinitely, which would make them rather more like something from a piece of criminal justice legislation.
 There is also a self-fulfilling justification for CTOs, which can validate themselves no matter what the outcome. If an individual’s mental health improves, that could be seen as a reason for their remaining under the order, so as to maintain that improvement. If they deteriorate, that could also be seen as justifying the need to continue. There is a real fear that people will be sucked into the lobster pot and into coercion, but it is not at all clear how they can get out. It is reasonable that a time limit should be imposed. I shall be interested to know why the Government do not agree and why they did not put one in the Bill in the first place.

Ann Winterton: Let me say straight away that I understand the reason for the hon. Gentleman’s amendment. I know that people are concerned about whether community treatment orders could be extended without any real justification, just to be on the safe side. However, I assure the Committee that there is no reason at all why that should happen, because if it did the person responsible would be acting unlawfully. As we explained when the issue was debated in the other place, there are many safeguards in the Bill to protect patients, including access to the tribunal and the automatic referral to the tribunal, which happens not only after the first six months, but after three years.
 There are concerns about the renewal of detention, but I hope that hon. Members will agree that our amendments to involve an approved mental health professional in decisions about extending a patient’s CTO will address those concerns. Our amendments were inspired by an amendment in the other place. We are retaining the effect that their lordships wanted, although we are changing the way it is set out in the Bill.
 If members of the Committee accept our inspired amendments, patients on a CTO will have a further important safeguard. Each time a CTO come up for review, an AMHP must agree that the conditions for its extension are met and that it is appropriate for the order to be extended before that can happen. A second opinion from a professional who is trained to take decisions using a different perspective—in particular, to consider the patient’s social circumstances—will ensure that the patient’s situation is considered from every angle. Even if the conditions are met, the AMHP will be able to decide that the extension of the CTO is not appropriate, so there will be full scope for the right decision to be made for the patient. The involvement of two professionals in the extension process will provide further protection against the unjustified extension of compulsion.
 That is a better way to tackle the issue than putting an arbitrary time limit on CTOs, which would mean the patient having to be discharged on a certain date, whatever his or her clinical condition at the time—[Interruption.] Obviously the effect of my speech is earth-shattering. There are obvious risks to that approach. Any time limit is an entirely arbitrary construct and takes no account of individual circumstances. As my noble Friend Lord Hunt said in the other place, that approach creates a kind of cliff-edge, as opposed to a lobster pot, in that a patient has to be discharged irrespective of whether he can manage safely in the community without the support of a CTO. That has the potential to put patients, their families, carers and, in some cases, the public, at real risk. In such cases, the only option may be to detain the patient.
 We do not think that those risks are justified, given the safeguards that are available for patients. In addition to the involvement of the approved mental health professional in CTO reviews, the patient has the right to apply to the tribunal for discharge as soon as the CTO begins and once during each period it is extended. Importantly, hospital managers and a patient’s closest relative can exercise the power of discharge from a CTO just as they can for detained patients.
I hope that our amendments will reassure service users, their families and all stakeholders that we do not intend for patients to be on CTOs when there is no need for them to be. The amendments will provide a sensible, practical measure to deliver that further reassurance. I therefore urge the hon. Member for East Worthing and Shoreham to withdraw amendment No. 2 and to support our amendments.

Tim Loughton: I shall not press the amendment, largely because the Minister spoke so fast that I shall have to read her words afterwards to understand them. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 26, in clause 32, page 25, line 3, after ‘satisfied’, insert
‘and if a statement under subsection (7A) below is made’.
No. 27, in clause 32, page 25, line 4, leave out from ‘report’ to end of line 5 and insert
‘to that effect in the prescribed form’.
No. 28, in clause 32, page 25, line 6, leave out subsection (5).
No. 29, in clause 32, page 25, leave out lines 24 to 43 and insert—
‘(b) it is necessary for his health or safety or for the protection of other persons that he should receive such treatment;
(c) subject to his continuing to be liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his being detained in a hospital;
(d) it is necessary for his health or safety or for the protection of other persons that he should continue to be liable to be recalled to hospital for medical treatment;’.
No. 30, in clause 32, page 25, line 45, at end insert—
‘(7A) The statement referred to in subsection (4) above is a statement in writing by an approved mental health professional—
(a) that it appears to him that the conditions set out in subsection (7) above are satisfied; and
(b) that it is appropriate to extend the community treatment period.’.—[Ms Rosie Winterton.]

Motion made, and Question put, That the clause, as amended, stand part of the Bill.

The Committee divided: Ayes 12, Noes 8.

Question accordingly agreed to.

Clause 32, as amended, ordered to stand part of the Bill.

Schedules 3 and 4 agreed to.

Clause 33 ordered to stand part of the Bill.
Further consideration adjourned.—[Claire Ward.]

Adjourned accordingly at Five o’clock till Tuesday15 May at half-past Ten o’clock.